General

In the Matter of the Claim of Margaret E. McCarthy, on Behalf of Herself and John R. McCarthy and Others, Infants, Respondent, against Remington Rand, Inc., Appellant. Workmen's Compensation Board, Respondent

275 A.D.2d 866·New York Supreme Court, Appellate Division·1949·NY

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Opinion

In the Matter of the Claim of Margaret E. McCarthy, on Behalf of Herself and John R. McCarthy and Others, Infants, Respondent, against Remington Rand, Inc., Appellant. Workmen’s Compensation Board, Respondent. [MAJORITY] Heffernan, J., Brewster, Santry and Bergan, JJ., concur; Deyo, J., dissents in the following memorandum: Regardless of any preholiday drinking in the plant, the fact remains that the death did not result from any drinking party. Assuming that deceased was the butt of a practical joke, there is not one scintilla of evidence to the effect that any such horseplay had ever been engaged in before, much less that it was known to the employer. It cannot be said, therefore, that the accident arose out of and in the course of his employment. (Matter of Gaurin v. Bagley & Sewall Co., 298 N. Y. 511.) I dissent and vote to reverse the award.