Claim of Weinstein v. Apex Dress Co.

New York Court of Appeals

Claim of Weinstein v. Apex Dress Co.

252 N.E.2d 634, 25 N.Y.2d 947, 305 N.Y.S.2d 157, 1969 N.Y. LEXIS 1051

CourtNew York Court of Appeals

DecidedOctober 9, 1969

StatusPublished

Cited by1 cases

This text of 252 N.E.2d 634 (Claim of Weinstein v. Apex Dress Co.) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Claim of Weinstein v. Apex Dress Co., 252 N.E.2d 634, 25 N.Y.2d 947, 305 N.Y.S.2d 157, 1969 N.Y. LEXIS 1051 (N.Y. 1969).

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Opinion

Memorandum. The order of the Appellate Division should be reversed, without costs and the claim before the Workmen’s Compensation Board dismissed. The Workmen’s Compensation Board found that “ the prolonged argument and emotional strain participated in by the decedent prior to his collapse on July 24, 1964 involved greater stress and exertion than the ordinary wear and tear of life.” On this record such finding is incorrect, as a matter of law. The altercation did not involve stresses or strains greater than ordinary wear and tear of life (Matter of Zygler v. Tenzer Coat Co., 19 A D 2d 660, affd. 15 N Y 2d 562; Matter of Cramer v. Barney’s Clothing Store, 15 A D 2d 329, affd. 13 N Y 2d 711; Matter of Coleman v. Guide-Kalkhoff-Burr, 12 A D 2d 554, affd. 10 N Y 2d 857; Matter of Santacroce v. 40 W. 20th St., 9 AD 2d 985, affd. 10 N Y 2d 855; see, also, Matter of Nicotera v. Dorn’s Transp., 30 A D 2d 735, mot for. lv. to app. den. 25 N Y 2d 738).

[949]*949•Chief Judge Fuld and Judges Scileppi, Breitel and Jasen concur in a memorandum; Judges Burke and Bergan dissent and vote to affirm on the prevailing opinion at the Appellate Division; Judge ¡Gibson taking no part.

Order reversed, etc.

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Memorandum. The order of the Appellate Division should be reversed, without costs and the claim before the Workmen’s Compensation Board dismissed. The Workmen’s Compensation Board found that “ the prolonged argument and emotional strain participated in by the decedent prior to his collapse on July 24, 1964 involved greater stress and exertion than the ordinary wear and tear of life.” On this record such finding is incorrect, as a matter of law. The altercation did not involve stresses or strains greater than ordinary wear and tear of life (Matter of Zygler v. Tenzer Coat Co., 19 A D 2d 660, affd. 15 N Y 2d 562; Matter of Cramer v. Barney’s Clothing Store, 15 A D 2d 329, affd. 13 N Y 2d 711; Matter of Coleman v. Guide-Kalkhoff-Burr, 12 A D 2d 554, affd. 10 N Y 2d 857; Matter of Santacroce v. 40 W. 20th St., 9 AD 2d 985, affd. 10 N Y 2d 855; see, also, Matter of Nicotera v. Dorn’s Transp., 30 A D 2d 735, mot for. lv. to app. den. 25 N Y 2d 738).

[949]*949•Chief Judge Fuld and Judges Scileppi, Breitel and Jasen concur in a memorandum; Judges Burke and Bergan dissent and vote to affirm on the prevailing opinion at the Appellate Division; Judge ¡Gibson taking no part.

Order reversed, etc.

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Bluebook (online)

252 N.E.2d 634, 25 N.Y.2d 947, 305 N.Y.S.2d 157, 1969 N.Y. LEXIS 1051, Counsel Stack Legal Research, https://law.counselstack.com/opinion/claim-of-weinstein-v-apex-dress-co-ny-1969.

Opinion

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