duct known to the law as "horseplay". To be victimized by a prank perpetrated by a coemployee has long been recognized as an incident of employment, as something reasonably to be expected, a peril of service; an indulgence in a moment's diversion from work to joke with or play a prank upon a fellow workman is a matter of common knowledge to everyone who employs labor ( Matter of Leonbruno v. Champlain Silk Mills, 229 N.Y. 470; Thom v. Sinclair, A.C. 127; Matter of Redner v. Faber Son, 223 N.Y. 379) and an employee so injured will be allowed compensation benefits if the board is satisfied that the acts were incidental to the employment ( Matter of Industrial Comr. [ Siguin] v. McCarthy, 295 N.Y. 443; Matter of Lang v. Franklin Ry. Supply Co., supra; Matter of Chanin v. Western Union Tel. Co., 271 App. Div. 763; cf. Matter of Gaurin v. Bagley Sewall Co., 298 N.Y. 511). But when the board is not so satisfied, compensation will be denied ( Matter of Gaurin v. Bagley Sewall Co., supra; Matter of Ognibene v. Rochester Mfg. Co., 298 N.Y. 85). These general principles are equally available here, particularly as it is quite apparent from the evidence that the claimant, although collaborating or participating in the event, was not the instigator thereof but was its innocent victim. Perhaps it would be well to say also that an award in horseplay cases should not depend on evidence of foreseeability. It is an important element ( Matter of McCarthy v. Remington Rand, Inc., 300 N.Y. 715), but not necessarily conclusive.

As Larson points out: Ognibene v. Rochester Manufacturing Company, 298 N.Y. 85, 80 N.E.2d 749 (1948) (Desmond, J., dissenting, 80 N.E.2d at 751). The substantial character of a horseplay deviation should not be judged by the seriousness of its consequences in the light of hindsight, but by the extent of the work-departure in itself.

" Judge Desmond in his dissent in Ognibene v. Rochester Mfg. Co., 298 N.Y. 85, 80 N.E.2d 749, 750 ( Ct. App. 1948) stated: "I cannot agree that the inconsequential, sportive act of claimant * * * was such a complete deviation from his employment that he is barred from receiving workmen's compensation even though he was on an errand for his employer at the time, was in the employer's place of business and received his injuries from a piece of equipment belonging to his employer.

J., in Derhammer v. Detroit News, 229 Mich. 658, 660), and in further view of the suggestion of the highest New York court in 1948 (as well as other courts) that before recovery could be had, in a sportive assault case, the practice must have been of such long-standing duration that it had become a custom of the business, we may be justified in devoting some attention thereto. Ognibene v. Rochester Manfg. Co., 298 N.Y. 85 ( 80 N.E.2d 749); cf., Hayes Freight Lines v. Burns (Ky), 290 S.W.2d 836. It is from the establishment of the custom that the courts find knowledge of, and toleration (or "condonation") of, the sportive practice by the employer.

The question is "whether claimant's act — which resulted in his injury — was a single, isolated act or one of a series of similar incidents generally participated in, to the employer's knowledge, by employees, sufficient to regularize such conduct and stamp it as part and parcel of the employment." Ognibene v. Rochester Mfg. Co., 298 N.Y. 85, 80 N.E.2d 749, 750, noted 34 Corn.L.Q. 460; Larson, Workmen's Compensation Law, sec. 23.41. The employer's knowledge of the practice, actual or constructive, is important.

Surely "this trifling act of foolery" was not such a deviation from Lomba's employment responsibilities as to justify the denial of compensation. Ognibene v. Rochester Mfg. Co., 298 N.Y. 85, 89, 80 N.E.2d 749, 750 (1948) (Desmond, J., dissenting.)

which turns on whether plaintiff and defendant were "in the same employ," gives a coworker greater protection than does section 19 of the firemen's law, which protects only a person acting "in furtherance of the duties or activities in relation to which" the injury resulted, for our decisions have long recognized that an employee may be within the course of employment (and thus in "the same employ") even though not acting strictly in furtherance of his duties or his employer's objectives (see, generally, 1A Larson, Workmen's Compensation Law, §§ 20-23). On its wording section 19 affords no basis for dismissal of the complaint, for a jury could find, there being evidence (both in the disciplining of defendant firemen and in testimony of individual witnesses that such initiation or hazing activities were not an accepted practice in the fire department) that in fact defendants were not acting "in furtherance of the duties or activities" in relation to which plaintiff's injuries resulted (Matter of Ognibene v Rochester Mfg. Co., 298 N.Y. 85; see Matter of Heitz v Ruppert, 218 N.Y. 148, 152-153; cf. 1A Larson, Workmen's Compensation Law, § 23.41). Likewise the disparate wording of the two laws would make section 29 of the Workers' Compensation Law inapplicable because section 20 of the firemen's law applies section 29's exclusivity provision only to the extent not inconsistent with the firemen's law.

There is no evidence that the employee was a participant in the "horseplay" at the time of the accident. The employer's reliance on Ognibene v. Rochester Manufacturing Co., 298 N.Y. 85, 80 N.E.2d 749 (1948) is misplaced. A non-participating victim of "horseplay" may recover compensation. 1 Larson, Workmen's Compensation Law, § 23.20.

njury. Ackerman v. Cardillo, supra; American Fire Casualty Co. v. Gay (Ga.), 123 S.E.2d 287; Calton v. Samuel Fox Co., 158 LT NS 402, 31 BWCC 43-CA; Dalsheim v. Industrial Accident Comm., 215 Cal. 107, 8 P.2d 840; Eagle-Picher Mining and Smelting Co. v. Davison, 192 Okla. 13, 132 P.2d 937; Evans v. Powell Duffryn Asso. Collieries, 31 BWCC 457-CA; Givens v. Travelers Insurance Co., 71 Ga. App. 50, 30 S.E.2d 115; Highway Oil Co. v. State, 130 Ohio St. 175, 198 N.E. 276; Horn v. Broadway Garage, 186 Okla. 535, 99 P.2d 150; Hughes v. Tapley, 206 Ark. 739, 177 S.W.2d 429; Industrial Comm. v. Bankes, 127 Ohio St. 517, 180 N.E. 437; Jones v. Campbell, W. C. Foundry Co., 284 Mich. 358, 279 N.W. 860; Leonbruno v. Champlain Silk Mills, 229 N.Y. 470, 128 N.E. 711, 13 A.L.R. 522; McKenzie v. Brixite Manufacturing Co. (N.J.), 162 A.2d 276; McKnight v. Houck, 87 Colo. 234, 286 P. 279; Maddox v. Travelers Insurance Co., 39 Ga. App. 690, 148 S.E. 307; Mailoux's Case, 328 Mass. 572, 105 N.E.2d 222; Ognibene v. Rochester Manufacturing Co., 298 N.Y. 85, 80 N.E.2d 749; Porter v. New Haven, 105 Conn. 394, 134 A. 293; Powers v. Y.M.C.A., 17 N.J. Misc. R. 261, 8 A.2d 189; Richardson v. Texas Employer's Insurance Assn., 46 S.W.2d 439; Riggins v. Lincoln Tent Awning Co., 143 Neb. 893, 11 N.W.2d 810; Staubach v. Cities Service Oil Co., 127 N.J.L. 577, 24 A. 193; Steffes v. Ford Motor Co., 239 Mich. 501, 214 N.W. 953; Stockham Pipe Fittings Co. v. Williams, 245 Ala. 570, 18 So.2d 93; Terry Motor Co. v. Mixon (Okla.), 361 P.2d 180; Texas Indemnity Insurance Co. v. Cheely, 232 S.W.2d 124; Texas Indemnity Insurance Co. v. Dunlap, 68 S.W.2d 664; United States Casualty Co. v. Hardie, 229 S.W. 871; Velotta v. Liberty Mutual Insurance Co., 241 La. 814, 126 So.2d 445, 132 So.2d 51; Wittner v. Dexter Manufacturing Co., 204 Iowa 180, 214 N.W. 700; LSA-R.S., Sec. 23: 1081; 58 Am. Jur., Workmen's Compensation, Sec. 200; Anno. 159 A.L.R. 319; 99 C.J.S., Workmen's Compensation, Sec. 264; 1 Larson, Workmen's Compensation Law, Secs. 23.30, 23.50, 23.63; Malone, Louisi

New York also permits recovery by participants where the skylarking is customary and within the knowledge of the employer. Ognibene v. Rochester Mfg. Co., 298 N.Y. 85, 80 N.E.2d 749 ( Ct. App. 1948); Industrial Com'r v. McCarthy, 295 N.Y. 443, 68 N.E.2d 434 ( Ct. App. 1946). Also see discussion of recent cases and other authorities in 22 NACCA Law Journal 175 ( Nov. 1958).