Kelleher v. City of New York

253 A.D. 850, 1 N.Y.S.2d 378, 1938 N.Y. App. Div. LEXIS 8893

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 12, 1938
• Status: Published

Opinion

Appeal from an award and decision in favor of claimant. On March 13, 1937, claimant was employed by the department of sanitation of the city of New York, his duties being to investigate violations of the Sanitary Code. He had a badge designating him as special patrolman, and he had authority to issue summonses and to make arrests for violation of the code. While in the course of his duties, issuing a warning and writing out a summons to a storekeeper for a violation of the Sanitary Code, a third party interfered and assaulted him, causing the injuries for which the award has been made. The point made by the appellant is that the claim does not come under the Workmen’s Compensation Law because claimant was injured while in the performance of a governmental function; that at the time of the assault he was acting as a city patrolman. He had passed the civil service examination for patrolman in the police department, but it does not appear that he had been appointed as a patrolman. His name was taken from the patrolman list of the police department furnished by the civil service commission, and he was assigned to his duties in the bureau of inspection, department of sanitation, his position being described as “ investigator.” The Board found that the work in which he was engaged at the time of the accident was incidental to the main business of his employer. Award unanimously affirmed, with costs to the State Industrial Board. Present — Hill, P. J., Rhodes, McNamee, Bliss and Heffernan, JJ.