decided: October 9, 1969.
IN THE MATTER OF THE CLAIM OF BESSIE WEINSTEIN, RESPONDENT,
APEX DRESS COMPANY ET AL., APPELLANTS. WORKMEN'S COMPENSATION BOARD, RESPONDENT
Matter of Weinstein v. Apex Dress Co., 31 A.D.2d 590, reversed.
Chief Judge Fuld and Judges Scileppi, Breitel and Jasen concur in a memorandum; Judges Burke and Bergan dissent and vote to affirm on the prevailing opinion at the Appellate Division; Judge Gibson taking no part.
Memorandum. The order of the Appellate Division should be reversed, without costs and the claim before the Workmen's Compensation Board dismissed. The Workmen's Compensation Board found that "the prolonged argument and emotional strain participated in by the decedent prior to his collapse on July 24, 1964 involved greater stress and exertion than the ordinary wear and tear of life." On this record such finding is incorrect, as a matter of law. The altercation did not involve stresses or strains greater than ordinary wear and tear of life (Matter of Zygler v. Tenzer Coat Co., 19 A.D.2d 660
, affd. 15 N.Y.2d 562; Matter of Cramer v. Barney's Clothing Store, 15 A.D.2d 329, affd. 13 N.Y.2d 711; Matter of Coleman v. Guide-Kalkhoff-Burr, 12 A.D.2d 554
, affd. 10 N.Y.2d 857; Matter of Santacroce v. 40 W. 20th St., 9 A.D.2d 985, affd. 10 N.Y.2d 855; see, also, Matter of Nicotera v. Dorn's Transp., 30 A.D.2d 735
, mot. for lv. to app. den. 25 N.Y.2d 738).
Order reversed, etc.
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