Claim of Mata v. Phœnix Construction Associates

257 A.D. 1091, 14 N.Y.S.2d 699, 1939 N.Y. App. Div. LEXIS 9216

Opinion

Claimant’s husband, the deceased employee, was drowned from falling off a dock alongside wMch the barge of wMch he was the watchman was moored. The employer and carrier assert that Ms death resulted solely by reason of his intoxication ; frather, that no award may be made because, as they say, he had left the barge, the place of Ms employment, and, therefore, had abandoned Ms employment. Under conditions of necessity he was permitted to leave the barge. As to the intoxication, one witness testified that decedent and a companion, walking along arm in arm, staggered as they proceeded down the dock a short time before both fell into the river. This is not sufficient to show that the accident resulted solely from intoxication. (Matter of Westerman v. Equipment & Supply Co., Inc., 226 App. Div. 771; affd., 252 N. Y. 515.) Award unanimously affirmed, with costs to the State Industrial Board. Present — Hill, P. J., Crapser, Bliss, Heffeman and Sehenek, JJ.