The order of the Appellate Division and the determination of the State Industrial Commission must be reversed and the claim dismissed, with costs in this court and in the Appellate Division against the State Industrial Commission.

HISCOCK, Ch. J., CHASE, POUND, MCLAUGHLIN, CRANE and ANDREWS, JJ., concur. Order reversed, etc.

13. COLLECTING DEBT

A newspaper pressman, on the way to the toilet, encountered. a fellow employee in a passageway. The fellow employee handed. him some money by way of paying a debt. A dollar bill dropped to the floor. In rescuing it the pressman lost some of his fingers in an electric fan. There was dispute whether the accident was due to instinctive grabbing or deliberate attempt to take the bill out of the fan. The Appellate Division affirmed an award to the pressman unanimously and without opinion: Thompson v. N. Y. Herald Co., Case No. 75635, Jan. 18, 1918; 181 App. Div. 919, May 8, 1918.

14. SAYING GOOD-BYE

During a lull in his work a fourteen year old boy crossed the factory room in which he was working to say good-bye to a fellow employee who was leaving for military service. While talking. he unwittingly placed his hand upon some unguarded gears of the machine his fellow employee was operating and lost two of his fingers. The Commission awarded him compensation. Upon appeal the Attorney-General argued that the compensation law was not so strict as to tie an employee to his bench and machine; that the room in this case was the ambit of employment and that the employee was subject to the hazards of any machine within it. The Appellate Division affirmed the award unanimously and without opinion (184 App. Div. 922), but the Court of Appeals reversed the order and dismissed the claim upon opinion of Judge Hiscock reviewing judicial precedents. The opinion is as follows:

DI SALVIO V. MENIHAN Co., 225 N. Y. 123, Jan. 7, 1919.

HISCOCK, Ch. J.: We are unable to see how the award in this case can be sustained. As found by the Industrial Commission the claimant was in the employ of defendant Menihan Company, which was engaged in the manufacture of shoes, and his duties consisted in marking soles with a rubber hand stamp. At the time of the accident he "had crossed the room in which he was working to talk to a fellow-employee who had been drafted and who would be required to leave work on account of the draft in a little while.

was

Di Salvio wished to say good-by to the drafted man before he went to thefront, and while leaning on the bench connected with the splitting machinewhich was being operated by said employee, the right arm caught in an unguarded cogwheel, and he sustained the injuries (for which the award has been made). At the time that Salvio walked across the room to greet his fellow-employee he had finished the work that had been assigned to him and was awaiting the arrival of more work."

Di

In our opinion the accident did not in any degree arise out of or in thecourse of claimant's employment.

The courts have been liberal, as they should be, in so interpreting workmen's compensation statutes as to extend in many cases the relationship of employee to acts which seemed to be outside of the strict and ordinary linesof duty, as a basis for compensation. In accordance with this policy it has been held that the accident arose out of and in the course of employment. where an injury happened to an employee eating his dinner upon his employer's premises in accordance with express permission of the latter or usual custom (Mann v. Glastonbury Knitting Co., 96 Atl. Rep. 368); or to a workman on a telegraph line who had taken refuge during a storm under a freight car and had gone to sleep (Moore v. Lehigh Valley R. R. Co., 217 N. Y. 627); or to an employee injured while returning from a cabin on the premises of a railroad company to which employees were permitted to go to eat their meals (Earnshaw v. Lancashire, etc., Rway. Co., 5 W. C. C. 28); or to an employee injured by a falling wall while he was taking dinner on his employer's premises (Blovelt v. Sawyer, 6 W. C. C. 16); or to a lighterman, who, while waiting for the tide to ebb, went from his barge to a small boat. a short distance therefrom to rest (May v. Isom, 7 B. W. C. C. 148); or toan employee who in accordance with a general practice left the composing room where he worked to go upon the roof and get fresh air on a hot night (Matter of Von Ette, 111 N. E. Rep. 696); or to an employee engaged in dumping cars who on a cold night during an interval of leisure for the purpose of protection laid down in a position where he was subsequently injured by a moving car (N. W. Iron Co. v. Industrial Commission, 160 Wis. 633); or even to an employee who was injured while getting down from a moving wagon where he properly belonged to pick up his pipe (M'Lauchlan v. Anderson, 4 B. W. C. C. 376); or to an employee who was injured in attempting to stop the runaway horse of his employer although his regular work was entirely unconnected with horses (Rees v. Thomas, 1 W. C. C. 9); or to an employee who as the result of reproof administered in his line of duty to a fellow-workman was struck by the latter in the eye (Matter of Heitz v.Ruppert, 218 N. Y. 148).

And this court perhaps went farther than any of these cases in extending the benefits of a compensation act when it held, as it did, in Matter of Waters v. Taylor Company (218 N. Y. 248) that an employee was acting within the scope of his employment so as to be entitled to the benefits of the act when he left his strict line of employment in the attempt to rescue another workman, technically in the employ of an independent contractor, from a danger which threatened his life. We thus held on the broad principle that as between the employee and the employer "It must have been within the reason-able anticipation of his employer that his employees would do just as Waters

did if the occasion arose, for it is quite inconceivable that any employer should expect or direct his employees to stand still while the life of a fellowworkman working a few feet away was imperiled by such an accident as occurred here, and it seems to us that the accident arose out of his employment."

In each of these cases an award was sustained because the court was able fairly to say that between the work for which the employee was engaged and the disputed act which led to the accident there was either naturally or as the result of some act of the employer or of custom a real relationship which brought the accident within the range of employment, and, therefore, it could be said to have arisen out of and in the course of the employment.

But in the present case we search in vain for any such feature or relationship. 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 simple and solely the expression of a private desire and the consummation of a personal purpose. However natural and even commendable his act may have been it was neither beneficial to his employer nor to himself in the way of completing and performing his work.

The impulse may be, not unnaturally, to say in justification of it that an employee ought not to be compelled to stand idly at his post while waiting for work and that claimant's deviation from his proper course was only by a few feet. But these reasons will not stand analysis. So far as the first one is concerned, as has been pointed out, it would doubtless be possible for an employee temporarily out of work, and if he could do so without interfering with his duties, to seek some proper and available place for rest without destroying his relation of employee. And so far as concerns the second one, the conduct of an employee in a crowded machine shop is not to be measured by mere distances. In this case claimant went far enough to exchange a perfectly safe occupation for a condition of danger and accident. After all other considerations, the controlling and inevitable question remains whether it is part of the employment of an employee in a shop, hired to perform simple and fixed duties, to leave these and visit his fellow-workmen on errands of a purely personal character utterly unconnected with his regular duties. We think that the answer to this question is self-evident unless we are to extend the relation of employment for purposes of the Compensation Act over areas which will not only be new but difficult to define by any certain or logical boundaries.

The tests of such a claim as this were succinctly stated by Judge POUND in Matter of Heitz v. Ruppert (218 N. Y. 148, 152): “The injury must be received (1) while the workman is doing the duty he is employed to perform, and also (2) 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."

Claimant's injury does not survive these tests and his case comes within the principles of Matter of O'Toole (118 N. E. Rep. [Sup. Judicial Court

Massachusetts] 303), where it was held that accidental death occurring to a decedent who had temporarily left his employment to talk with a fellowemployee about personal matters could not be said to have arisen out of and in the course of his employment so as to become the basis for a claim; of Reed v. Great West. Rway. Co. (78 L. J. K. B. 31), where it was held that an engine driver who had left his engine while at rest and crossed a siding to receive from a friend a book unconnected with his duties, was not so engaged in his employment that an injury then received by him would be the basis for a claim under the Compensation Act; of Bischoff v. American Car & Foundry Company (157 N. W. Rep. [Supreme Court of Michigan] 34), where it was held that an employee who transgressed his instructions in order to assist a fellow-employee in the repair of a machine could not recover compensation for an accident then arising, although the injured employee thought that his acts were for the benefit of his employer; of Smith v. Lancashire, etc., Ry. Co. (1 W. C. C. 1), where a ticket collector having finished his duties tarried on the footboard of the car for a moment to speak to a passenger and was injured; of Spooner v. Detroit Saturday Night Co. (153 N. W. Rep. [Supreme Court of Michigan] 657), where an employee who was injured while conveying some fellow-employees in an elevator to their work as a favor to them and which act was outside of his line of duty was denied workmen's compensation; of Matter of Gifford v. Patterson, Inc. (222 N. Y. 4), where it is stated that "when an employee is injured through some act of his own, not an incident to his employment, and not authorized or induced by his employer in connection with his employment, the injury does not arise out of and in the course of his employment within the meaning of the Workmen's Compensation Law."

We think that the order of Appellate Division and award of the industrial commission must be reversed and the claim dismissed, with costs in this court and in the Appellate Division against the industrial commission.

COLLIN, CUDDEBACK, HOGAN and MCLAUGHLIN, JJ., concur; CHASE and CRANE, JJ., dissent. Order reversed, etc.

15. VISITING BEYOND PREMISES

The Appellate Division, two justices dissenting, has reversed an award to the widow and children of a night watchman who left his employer's dock for a social visit with the captain of a boat anchored alongside and who fell into the water upon attempt to jump back from the boat to the dock. Opinion in the case is as

follows:

KING V. STANDARD OIL CO. OF N. Y., 184 App. Div. 453, Sept. 11, 1918. LYON, J.: James King was employed as a special night watchman by the Standard Oil Company of New York at its Empire yard in that city. His duties were to watch the yard; to keep strangers out; to look for fires, and to go around through the yard and punch the watchman's clock every half hour. There were four clocks on the dock. One was situated about ten feet inside the barricade which the workmen erected every night to keep persons from walking onto the dock, which was being repaired. This barricade was

about four feet six inches in height, and separated the dock from the place where repairs were being made. This barricade extended from the edge of the city pier, which was north of the dock, to a building upon the lands of the Standard Oil Company. King went to visit the owner of the Cullen, a boat which was fastened about two feet above the dock, and about three feet from the end of the dock. While there he had two drinks of whisky. Attempting to return he jumped from the boat upon that portion of the dock which was being repaired and which was fenced off by the barricade. He jumped either upon a plank which broke, or into the open water. He was rescued, but the next day died as the result of the exposure. The injuries were sustained on April 2, 1917.

We do not think the deceased was engaged in the performance of his duty at the time he jumped from the boat. He had gone outside his employment at the time he went onto the barge. He sustained the injury while returning to his work. His duties were confined to the yard. This visit to the captain was a clear violation of his duty. He was employed to watch the premises. He voluntarily abandoned his employment. His injury was not received as a natural incident of his work. It was neither a risk connected with his employment, nor a risk arising out of his employment. The accident resulted from the act of the claimant's intestate, disconnected wholly from the sphere of his employment. It was held in Matter of Gifford v. Patterson, Inc. (222 N. Y. 4) that a man who had departed from his employment sufficiently long to drop asleep while employed as a night watchman, by means of which he fell down a chute and was killed, could not be awarded compensation. As the court said in that case: "His injury was not received as a natural incident of his work. It was not a risk connected with his employment or arising out of and in the course of his employment. The acts of Gifford as found by the commission, instead of being in the course of his employment, were directly contrary to the object and purpose for which he was employed." The deceased was injured while attempting to return to his employment.

In Reed v. Great Western Ry. Co. (2 B. W. C. C. 109), where an engine driver in the employment of the respondent company left his engine when it was standing at rest, and crossed the line in order to communicate with the fireman of another engine on business of his own not in any way concerning his work or his employer's, on his way back to his engine he was knocked down by a truck and killed. Held, upholding the decision of the Court of Appeal of England, that the accident did not arise "out of and in the course of" his employment within section 1 (1) of the Workmen's Compensation Act of 1897.*

In Spooner v. Detroit Saturday Night Co. (187 Mich. 125), where decedent was employed to operate an engine and dynamo in the basement, and no duty called him to the upper floors, injuries incurred which caused his death while running an elevator from the second to the third floor, did not arise out of and in the course of his employment. "The injury must have been a natural incident of the work." (Matter of O'Neil v. Carley Heater Co., 218 N. Y. 414.)

"If there is only a casual or remote connection between the hazard of the employment and the loss - if the one does not flow naturally from the other the liability is not established." So where a person was employed in deliver* See 60 & 61 Vict. chap. 37, § 1, subd. 1.-[REP.