Opinion
Argued April 14, 1965
Decided June 10, 1965
Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department.
Kenneth K. Floyd and Philip J. Caputo for appellants.
Louis J. Lefkowitz, Attorney-General ( Julius Fell, Paxton Blair and Daniel Polansky of counsel), for Workmen's Compensation Board, respondent.
Order affirmed, with costs to respondent Workmen's Compensation Board.
Concur: Chief Judge DESMOND and Judges DYE, FULD, BURKE and BERGAN.
An employee cannot obtain workmen's compensation if he is injured in the course of doing a thing forbidden by his employer ( Matter of Hyatt v. United States Rubber Reclaiming Co., 256 N.Y. 571, affg. 230 App. Div. 743; Matter of Boggan v. Abby Finishing Co., 11 A.D.2d 591). There is no dispute that this was a wildcat strike, as conclusively determined by the executive board of the union. That was a sufficient basis, under the union's constitution and by-laws, on which to depose him as vice-president of this local. The circumstance that it has been found that he had a mild myocardial infarction as a result of the hearing necessitated by his deliberate violation of the orders of his employer cannot, in our judgment, give him the right to claim that this disability arose out of and in the course of his employment. The hearing was necessitated by his disobedience of the command of his employer, and would not have occurred except therefor. The order appealed from should be reversed and the claim dismissed.