Opinion
September, 1929.
Award affirmed, with costs to the State Industrial Board, on the authority of Matter of Norris v. N.Y.C.R.R. Co. ( 246 N.Y. 307) ; Domres v. Syracuse Safe Co. ( 211 App. Div. 823; affd., 240 N.Y. 611); Bountiful Brick Co. v. Giles ( 276 U.S. 154, 158). Van Kirk, P.J., Hill and Hasbrouck, JJ., concur; Davis and Whitmyer, JJ., dissent and vote to reverse and remit, on the ground that it is evident from the record that the period of labor of the deceased employee had not yet begun, and that the accident did not occur in the course of any of the duties he was directed or called upon to perform; that the testimony of the union organizer, Rothenstein, was not based upon facts within his knowledge, but upon hearsay, opinions and conclusions; it, therefore, furnished no corroboration of the alleged declarations of the decedent, or the basis of a finding that the accidental injuries arose out of and in the course of the employment. ( Matter of Case, 214 N.Y. 199.)