have existed some time," and that the finger was in a gangrenous condition, and that the infection ran halfway up his forearm. Subsequently he amputated first one finger and later two more fingers. The amputations were successful, but his other troubles grew worse, and he died as stated. If the notices had been given as required by the statute, or even if knowledge of the alleged injury had been obtained in some other way at or about the time it is claimed that the injury occurred, there would have been an opportunity not only for a prompt general investigation of the alleged circumstances of the accident but of the employee's story thereof and there could have been an examination of the injured finger, and such care and attention could have been given to it as to have prevented infection or, if infection was not so prevented, then the facts relating to it could have been obtained from which it could have been better determined whether the infection was the result of causes other than the alleged injury. There can be no reasonable doubt that without the statutory notices or proof of knowledge of the injury and claim, the employer and insurance carrier were prejudiced. The order of the Appellate Division should be reversed and the awards of the Industrial Commission annulled, and the claims dismissed, with costs in this court and in the Appellate Division payable by the Industrial Commission. Hiscock, C. J., and Hogan, Cardozo, Pound, McLaughlin, and Andrews, JJ., concur. Order reversed, etc. SUPREME COURT OF NEW YORK. APPELLATE DIVISION, THIRD DEPARTMENT, CULHANE V. ECONOMICAL GARAGE CO. et. al.* MASTER AND SERVANT-WORKMEN'S COMPENSATIONACT-SCOPE OF EMPLOYMENT. Where a garage employee, having entered the office at his foreman's invitation to view a revolver found in an automobile, was killed by accidental discharge of weapon while it was handed to him by foreman, foreman and deceased were not then acting in employer's interest, so as to support an award under the Workmen's Compensation Law. (For other cases, see Master and Servant, Dec. Dig. § 375[1].) Appeal from State Industrial Commission. Claim of Mrs. Nora Culhane for compensation for herself and children under the Workmen's Compensation Law (Consol. Laws, c. 67) on account of the death of William F. Culhane, against the Economical Garage Company, employer, and the Employers' Liability Assurance Corporation, Limited, insurance carrier. From an award of the State Industrial Commission in favor of claimant, the employer and insurance carrier appeal. Award reversed, and claim dismissed. *Decision rendered, May 20, 1919. 176 N. Y. Supp. 508. Argued before John M. Kellogg, P..J., and Lyon, Woodward, Cochrane, and Henry T. Kellogg, JJ. Bertrand L. Pettigrew, of New York City (Walter L. Glenney, of New York City, of counsel), for appellants. Charles D. Newton, Atty. Gen. (E. C. Aiken, Deputy Atty. Gen., of counsel), for respondent. COCHRANE, J. The employer operated a public garage. The employee was employed to wash automobiles. The commission has made findings as follows: "On October 18, 1918, William F. Culhane was working for his employer at his employer's plant. While engaged in the regular course of his employment, he was directed by the foreman in charge of the garage to examine an automatic revolver which had been found in one of the automobiles. While obeying the order of his superior, and while holding out his hand to receive the pistol, and while the pistol was still in the possession of the foreman, it accidentally discharged, and a bullet therefrom entered the chest of William F. Culhane, causing his death 10 minutes later." The foregoing findings are entirely unsupported by the evidence. Day was the foreman in charge of the garage, having authority to give orders to the deceased in connection with the business. From this fact it has been assumed that whatever he said to Culhane was an order exacting from him obedience. The revolver that caused the fatal accident was in an automobile which was taken to the garage. At the request of the chauffeur the revolver was taken from the automobile by Day, the foreman, and placed in a desk in the office for safe-keeping. That was about 2 o'clock in the afternoon. It appears from the evidence that thereafter Day had no duties in respect to the revolver until such time as it might be called for by the chauffeur or owner of the car. The accident occurred after 11 o'clock. The only testimony in the case as to how it happened was given by Day, and is as follows: "Q. And when next did you see the pistol? A. When I called my friend in to show it to him. * * * Q. Did you have anything to do with that pistol as far as your work was concerned? A. Nothing at all —only just happened to pull open the drawer, and I called Will in to show it to him. Q. Will is Mr. Culhane? A. Mr. Culhane; yes. Q. Where was he when you called him in? A. He was coming in the door of the garage after being out to his supper; he had supper right in the garage, and he went out to have a glass of beer after supper. Q. It was the door between the main part of the garage and the office? A. Yes, sir; a big wicker door. Q. What did you say to him, and what did he say to you? A. I heard him and John Rhine coming in, and I says, 'Come in here, Bill, want to show you a pistol I took out of the Massachusetts car to-day; and he took it and put it against his shoulder and says, "That's a nice one-let's look at it'; and and I was just about to lay it onto his hand when she went off-it was just about slipping off of my hand onto his. * ** Q. You had general supervision over him -told him what he must do? A. I didn't tell him what he must do. I just asked him to come in and look at the pistol." It clearly appears, therefore, that Day was not acting in his capacity as foreman when he asked the deceased to enter the office for the purpose of looking at the revolver. That was not a command, but an invitation. The deceased was under no obligation to comply. For his refusal to do so he could not have been lawfully discharged. Had Day invited Culhane to go across the street to examine the revolver, and the accident had there occurred, it certainly could not be said that either man was engaged in the performance of a duty he owed his employer. The case does not differ materially because the accident happened on the premises of the employer. Or if the two men had been engaged in a game of cards in the office, and while thus engaged the accident had occurred, the case would not be materially different. In either of the supposed cases both men would have been engaged outside of their duty. The two men were gratifying their curiosity in respect to the revolver and were doing nothing to further the interest of their employer. In Matter of Saenger v. Locke, 220 N. Y 556, 116 N. E. 367, L. R. A. 1918F, 225, it was said: "The injury must be received as a natural incident of the work. It must be one of the risks connected with the employment, flowing therefrom as a natural consequence, and directly connected with the work." Such is not the case here. The respondent cites the case of Matter of Laurino v. Donovan, 186 App. Div. 387, 173 N. Y. Supp. 619. The distinction between that case and this is sufficiently indicated by a single sentence from the opinion: "He was engaged in the discharge of his duties when the explosion occurred." In the instant case neither Day nor Culhane was so engaged. They had both temporarily departed therefrom to serve a purpose of their own. In Matter of Di Salvio v. Menihan Co., 225 N. Y. 123, 121 N. E. 766, the injured employee crossed the room in which he was working to say good-by to a fellow employee who had been drafted into the military service, and while doing so was injured by machinery. The court said: "There was no connection between the employment for which claimant was engaged, of marking soles, and his trip across the shop to say good-by to a fellow employee. This act did not enable him, either directly or indirectly, in any tangible sense, the better to perform his work discharge his duties, or carry forward the interests of his employer. It was not a natural incident to the work for which he was hired. It did not grow out of any emergency where he was justified in taking an unusual step to protect his employer's interests. It was simply and solely the expression of a private desire and the consummation of a personal purpose." The circumstance that Day was the foreman of Culhane does not affect the situation. Day was not acting in the discharge of his duties as foreman, or carrying forward the interests of his employer, but with Culhane was engaged in the consummation of a purpose personal to each of them. Culhane was not obeying an order of Day in any proper view of the occurrence. To draw such an inference as that the occurrence must be warped out of its true significance. The award should be reversed, and the claim dismissed. All concur. SUPREME COURT OF NEW YORK. FISCHER GENESSEE CONST. CO. Et AL.* 1. MASTER AND SERVANT-WORKMEN'S COMPENSATION— ANNULMENT OF AWARD. Annulment of award by State Industrial Commission, under Workmen's Compensation Law, §§ 22, 74, where based upon opinions of physicians constituting no part of the record at any hearing, written after hearing was closed, and without knowledge of claimant, or opportunity to cross-examine or be heard with reference thereto, was error. (For other cases, see Master and Servant, Dec. Dig. § 417 [3%].) 2. MASTER AND SERVANT-WORKMEN'S COMPENSATIONREVIEW-ASSENT TO AWARD. Insurance carrier, which assented to award by admitting injury was cause of accident, will not be permitted a review upon appeal. (For other cases, see Master and Servnat, Dec. Dig. § 419.) 3. MASTER AND SERVANT-WORKMEN'S COMPENSATION— ANNULMENT OF AWARD. Industrial Commission's power to change award under Workmen s Compensation Law, §§ 22, 74, is not an arbitrary one, but a judicial discretion, to be exercised only in the interest of justice, and upon new evidence that counsel for commission was deceived, overreached, or acted upon a clear mistake of fact; cumulative evidence bearing negatively upon question of fact already amply proved being insufficient, in view of sections 21 and 23. (For other cases, see Master and Servant, Dec. Dig. § 419.) 4. MASTER AND SERVANT-WORKMEN'S COMPENSATION— ANNULMENT OF AWARD. Where annulment of award was based upon opinions as to cause of injury, made after close of hearing, by physicians who had not examined employee and were misinformed as to facts, and upon application of insurance carrier, who had admitted upon hearing that injury was cause of accident, the annulment was arbitrary, and not authorized by Workmen's Compensation Law, §§ 22, 74, in view of sections 21 and 23. (For other cases, see Master and Servant, Dec. Dig. § 419.) 5. MASTER AND SERVANT-WORKMEN'S COMPENSATION— LIABILITY OF STATE INSURANCE FUND. Liability of State Insurance Fund is in all respects the same as any. other insurance carrier, and is established by like proof. (For other cases, see Master and Servant, Dec Dig. § 405[1].) Appeal from State Industrial Commission. Proceeding under the Workmen's Compensation Law by Charles Fischer for compensation for injuries, oppposed by the Genesee Construc*Decision rendered, May 7, 1919. 176 N. Y. Supp. 86. tion Company, employer, and the State Insurance Fund, insurance carrier. From a decision of the State Industrial Commission, annulling award and dismissing claim, claimant appeals. Reversed, and award reinstated. Argued before John M. Kellogg, P. J., and Lyon, Woodward, Cochrane, and Henry T. Kellogg, JJ. C. D. Kiehel, of Rochester, for appellant. Charles D. Newton, Atty. Gen., and Robert W. Bonynge, of New York City (E. C Aiken, Deputy Atty. Gen., of counsel), for Commission. KELLOGG, P. J. An award was duly made October 8-11, 1917, and, upon a motion to reopen, was duly affirmed, January 14, 1918, and several payments were made thereon. It was well sustained by the reports of the emplover, the employee, and Dr. Schuhart, who treated the arm, and by the testimony of Dr. Snell, the oculist who treated the eye, and the testimony of Dr. Levy and Dr. Gelser for the State Fund. The claimant was présent, without counsel, but was not called as a witness. An adjournment was had for a week, to enable the Fund to have the claimant examined by a physician, but upon the adjourned day counsel for the Fund stated "that the general opinion seems to be that the loss of the eye is due to the accident," and the record shows that no further testimony was introduced, "largely due to the fact that the representatives of the State Fund, the physician who examined him, and those familiar with the case were of the opinion that the claimant had sustained a systemic septicemia as the result of the injury to the hand, and that caused the iritis, and subsequent loss of use of the right eye." [1] April 22, 1918, by the order under review, the commission annulled the award and dismissed the claim. Its decision is based upon the written opinions of two physicians. One of the opinions was written after the hearing was closed, and neither opinion seems to have been made a part of the record at any hearing, and the claimant apparently had no knowledge of them, and no chance to cross-examine or to be heard with reference to them. This practice did not give him the fair hearing contemplated by the statute, and the order should therefore be reversed. Matter of Hayes v. Communipaw Steel Co., App. Div. 176 N. Y. Supp. — decided at the March term of this court. The award was final and conclusive against the State Fund, no appeal having been taken. Section 23, Workmen's Compensation Law (Consol. Laws, c. 67). Nevertheless the commission had continuing jurisdiction over the case, with power to change its determination as justice may require Section 74. The presumption raised by section 21, and the provisions of section 23, prevent an interference with the award on the facts, unless there is substantial evidence of a mistake which, in the interest of justice, compelled such action. Sections 22 and 74 must be given a broad and liberal interpretation, and, as circumstances arise, must be held to cover cases which we cannot in advance anticipate. They are intended to remedy an apparent injustice. [2, 3] The State Fund so far assented to this award that it would not be permitted a review upon appeal. Cunningham v. Buffalo Copper & Brass Rolling Mills, 171 App. Div. 955, 956, 155 N. Y. Supp. 797. Neither, upon its application, should the commission annul the award, except upon new evidence clearly showing its injustice and that the counsel for the commission was deceived, overreached, or acted upon a clear mistake of fact. The mere fact that cumulative evidence has been found, which might bear negatively upon a question of fact already amply proved and understandingly conceded, is not in itself a basis for annuling the award. Public policy requires that there should be a reasonable end to litigation, and that issues once fairly tried and stipulated, with full knowledge of the facts, should not be disturbed, except for some com |