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Daly v. State Ins. Fund

Supreme Court of New York, Appellate Division

May 19, 1954

In the Matter of the Claim of HELEN M. DALY, on Behalf of Herself and MARY E. DALY and Another, Infants, Respondent,
v.
STATE INSURANCE FUND, Appellant. WORKMEN'S COMPENSATION BOARD, Respondent.

Page 175

APPEAL from a decision and award of the Workmen's Compensation Board, filed December 12, 1952, for death benefits under the Workmen's Compensation Law.

COUNSEL

George J. Hayes, Bernard Katzen and Victor Fiddler for appellant.

Nathaniel L. Goldstein, Attorney-General (Carl Madonick and Roy Wiedersum of counsel), for Workmen's Compensation Board, respondent.

Watson & Looby for claimant-respondent.

BERGAN, J.

Claimant's husband was employed as a senior compensation claims examiner by the State Insurance Fund. He resided in Albany and his assigned duty was to act as a hearing claims representative at workmen's compensation hearings. He travelled from place to place to attend hearings.

On adequate proof it is shown that decedent conferred with the representative of an assured of the State Fund and with an employee of the Special Fund Conservation Committee in the Elks Club in Plattsburgh on the night before a compensation hearing was to be held in that city.

It was decedent's custom to prepare cases for the next day in the hotel where he stayed and in the club where he ate dinner. The conference at the club continued until after midnight. The club was closed at 1:00 A.M. The board could find from the testimony of the assured's representative that he had suggested to the decedent that when they got back to the hotel another

Page 176

case should be discussed and that decedent said: 'I'll see you at the hotel. I will give you a call.'

It was midsummer and hot and stuffy in the room in which the discussions had been going on; decedent told the employee of the conservation committee that he 'would like to get some air, a breath of air' before going back to the hotel.

Both got into the decedent's car, which decedent drove. The conservation committee employee fell asleep. Seven miles north of the club, and proceeding in a direction away from Plattsburgh, the car collided with a telephone pole off the road and decedent was killed. The time of this accident has been fixed at about 1:40 A.M.

The board has held that decedent's death occurred in the course of employment. There is nothing inherently improbable about conferences at night; and, indeed, it seems not in dispute that ...


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