Claim of Roos v. Loft, Inc.

247 A.D. 842

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 15, 1936
• Status: Published

Opinion

Appeal from an award in favor of claimant. On February 16, 1934, claimant, while in the course of his employment as a chemical engineer by the employer, which was engaged in the manufacture of candy, ate some peanut butter which contained thallium sulphate which had been prepared as a rat poison, which was in a jar on a shelf in the laboratory of the employer’s plant where claimant was working. As a result he was poisoned and sustained the injuries for which the award has been made. The appellants assert that the accident did not arise out of and in the course of his employment and that the wage rate was improperly computed because of the fact that the employee had worked for the employer only ten days immediately preceding the accident and that he was a five-day worker and received forty-five dollars a week. The employer, however, admitted that claimant’s salary was forty-five dollars per week and the award has been computed upon this basis. The accident arose out of the employment. (See Matter of Miles v. Gibbs & Hill, Inc., 250 N. Y. 590; Matter of Monaco v. Kesselman’s Baby Stores, Inc., 240 App. Div. 930.) Award affirmed, with costs to the State Industrial Board. Hill, P. J., Rhodes, McNamee and Bliss, JJ., concur; Crapser, J.. dissents and votes to reverse the award and to dismiss the claim on the authority of Matter of Groszek v. Western Union Telegraph Co. (262 N. Y. 478).