In the Matter of the Claim of Commissioner of Taxation & Finance on Account of the Death of Elizabeth Simmons, Deceased, Respondent, against The Barclay Realty Company and The Travelers Insurance Company, Appellants. State Industrial Board, Respondent

In the Matter of the Claim of Commissioner of Taxation & Finance on Account of the Death of Elizabeth Simmons, Deceased, Respondent, against The Barclay Realty Company and The Travelers Insurance Company, Appellants. State Industrial Board, Respondent. [MAJORITY] Appeal from an award under the Workmen’s Compensation Law on account of the death of Elizabeth Simmons, deceased. This award is contested on the ground that the accident was caused by decedent’s use of an instrumentality which the employer had forbidden her to use, and hence did not arise out of her employment. Decedent was an elevator operator, and, shortly before quitting time, used the elevator which she had been operating during the day to go to the fourth floor of the building for the purpose of removing her uniform and putting on her street clothes. Shortly thereafter she was heard to scream, and was found caught between the door of the car and the fourth floor, with the starting lever of the ear in the down position. Appellant contends that in using the elevator to go to the fourth floor on this occasion she disobeyed her employer’s rules, and that she further violated a rule against starting the car and then attempting to leave the car when it was in motion. Going to the fourth floor for the purpose of changing her clothes was not forbidden, even if it be assumed that the means which she used and the manner of using it was. Award unanimously affirmed, with costs to the State Industrial Board. Present — Hill, P. J., Rhodes, MeNamee, Bliss and Heffernan, JJ.