Opinion
January 17, 1962
Present — Bergan, P.J., Coon, Gibson, Reynolds and Taylor, JJ.
Claimant appeals from a decision of the Workmen's Compensation Board which dismissed her claim for death benefits. The deceased employee was drowned when he fell into the St. Lawrence River while fishing after working hours from a dam being constructed by the employer. The board has found that the accident did not arise out of and in the course of employment. It is undisputed that claimant's work day had ended and that he normally would have left the employer's premises. His presence there was the result of his own election to remain to engage in the purely personal activity of fishing, which was totally unrelated to his employment. ( Matter of Congdon v. Klett, 307 N.Y. 218.) Appellant relies heavily upon Matter of Simons v. Hedges ( 286 App. Div. 1044). (See, also, Matter of Leonard v. Peoples Camp Corp., 9 A.D.2d 420, affd. 9 N.Y.2d 652.) In those cases the recreational privileges were held to be some inducement to the employment and a part of the arrangement of employment, a situation not present here. Moreover, in those cases the board decided the factual question the other way and held that the accident did arise out of and in the course of employment. Decision unanimously affirmed, without costs.