Claim of Kingsley v. Donovan

169 A.D. 828, 155 N.Y.S. 801, 1915 N.Y. App. Div. LEXIS 5083

Opinion

Kellogg, J.:

The appellants contend that the accident was not one arising out of and in the course of the employment. There is some evidence • tending to prove those facts, and under sections 20 and 21 of the Workmen’s Compensation Law the decision of the Commission is conclusive upon the facts. Clearly if the motor cycle was only used for the convenience of the claimant in bringing him to and from his place of work, the case would not be within the act. But the evidence shows that from time to time it was used in the business in going to and from the work off the premises, and. that at other times when it had been cared for during working hours no question had been raised by the employer. It could not be used in the business unless kept in proper condition. The fact that the workman was engaged upon it near the place of business and during business hours, and that it was frequently used in the business, do not make the findings of the Commission unreasonable. The award is, therefore, affirmed.

All concurred, except Smith, P. J., dissenting.

Award affirmed.