Opinion
May 11, 1949.
Appeal from Workmen's Compensation Act.
Decedent was employed as a night watchman, and his place of work was a shanty consisting of two rooms. On the morning of March 24, 1946, his body was found lying on the floor of the shanty about six feet from the bed which he occupied on occasions. His right wrist had been burned slightly and the whole center of the mattress on the bed was burned and charred. There was also a hole burned out in the wall of the shanty about eight inches in diameter, next to the mattress and at the level thereof. The floor was littered with cigarette butts and it was shown that the decedent was an habitual cigarette smoker. An autopsy performed upon decedent's body conclusively indicated that his death resulted from carbon monoxide poisoning. It also showed the presence of .32% grain alcohol in his liver. Nothing whatever was shown to indicate that the fire on the premises could have resulted from any outside causes or from any act other than a personal act of the decedent. We are unable to distinguish this case from other authoritative cases where claims for compensation have been dismissed under similar circumstances. ( Matter of Pisko v. Mintz, 262 N.Y. 176; Matter of Commissioner of Taxation Finance v. Brookshire Constr. Co., 275 N.Y. 578.) If there is to be any change in the principles enunciated in these cases the change should be indicated by the court of last resort. We feel impelled to follow them. Award reversed, on the law, and claim dismissed, with costs to appellants against the Workmen's Compensation Board. Foster, P.J., Brewster, Santry and Bergan, JJ., concur; Heffernan, J., dissents and votes to affirm the award.