Claim of Giliotti v. Hoffman Catering Co.

221 A.D. 205, 223 N.Y.S. 503, 1927 N.Y. App. Div. LEXIS 6409

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 4, 1927
• Status: Published

Opinions

Whitmyer, J.

Whether or not the death of deceased arose out of and in the course of his employment is the question.

A fire occurred at Hoffman’s Inn on the Merrick road, Valley Stream, L. I., on Monday, October 26, 1925, at about one-forty A. m. Deceased was suffocated while he was in his room, and died as the result. He was a chef there at the time and had been for about three years. He received fifty dollars per week, with room and board, as his weekly wage. Monday was his day off. He could leave as soon as his work was finished on Sunday night or early Monday morning. His employer testified that he would not sleep there Monday night, but would be there Tuesday, unless he took the other chef’s place, in which event he would be there Monday night. His wife and daughter lived in The Bronx. She testified that he came there once a week. She did not state when. At times he remained at the inn on his day off. When he did, he had his room and meals just the same. It was his room. No one else shared it. The inn was closed before the fire broke out. The guest entrance was closed about one-five a. m., and deceased had closed and locked the kitchen and gone to his room. An employee testified that he saw him there at about one-thirty A. M., and asked him if he was going home; that his reply was, “ Yes, as soon as I am dressed;” that he then told him to call out, when ready, saying that he would be in the front dining room, and that he left the special entrance door for the help open for him. He testified further that he could not recall how he was dressed, but that he was dressing. The fire was discovered about one-forty A. m. When it was out, the body of deceased was found in the corner of the closet in his room, with clothes on top of him. In his work, he wore chef's clothes, a cap, white coat and apron, and light pants. When found, he had on a suit of underclothes, a sort of white outer shirt, socks, blue serge pants and a belt. And his bed had not been touched. The death did not arise out of and in the course of the employment. When the fire broke out, the inn had been closed for the night and deceased had gone to and was in his room. That was where he lived. His work for the day was ended and he was suffocated after that. If he was preparing to go to his wife, however improbable, considering the hour, that does not affect the matter. He did not live where she lived. It is not as if he had been accustomed to go there daily after his work, and in preparing to go, if he was, he was attending to his own ends and acting for himself. (Matter of Daly v. Bates & Roberts, 224 N. Y. 126, 128; Matter of Davidson v. Pansy Waist Co., 240 id. 584; Kane v. Barbe, 210 App. Div. 558, 560; Fraher v. Hotel McAlpin, Id. 817.) This conclusion is not in conflict with the decision in Matter of Lynch v. City of New York (242 N. Y. 115, 118, 119). There the place of employment was the island, upon which were located the hospital, where claimant worked, and the nurses' home, where she lodged. The place of employment was not merely the hospital itself and her work did not cease when she left the hospital, but was continuous and continued while she was on the island, leaving and returning over the route provided by the employer. That is not this case and the court said, expressly, that if she had been injured while doing her own work, washing her clothes or dressing herself, it would have been an injury not arising out of and in the course of her employment.

The award should be reversed and the claim dismissed, with costs.

Van Kirk, Acting P. J., and Hinman, J., concur; Davis, J., dissents, with an opinion in which McCann, J., concurs.