Schwartz v. State

161 Misc. 751, 293 N.Y.S. 799, 1937 N.Y. Misc. LEXIS 1538

Opinions

Ryan, J.

The negligence of the State of New York has been determined by this court in two previous claims. Awards therein were made, paid, and no appeal taken. (Anderson v. State, Claim No. 23785; Albany Yellow Cab Co., Inc., v. State, Claim No. 23786.)

Two questions remain. The answer to the first is that we find claimant’s intestate free from contributory negligence.

The second question is: Did the injuries to and death of claimant’s intestate arise out of and in the course of his employment?

Schwartz had ceased work for the day. After the lapse of about fifty minutes he had called a taxicab of his own volition and at his own intended expense to transport him to his home. He made his election of one of two means of exit from the terminal.

After careful study of the authorities, including those cited in briefs of counsel and others, we determine that the question must be answered in the negative. (See Matter of Kowalek v. N. Y. Cons. R. R. Co., 229 N. Y. 489; Symonski v. Central R. R. Co. of N. J., 102 N. J. L. 271; 131 A. 628; Aldredge v. Baltimore & Ohio Ry. Co., 20 F. [2d] 655.) There are numerous other cases which might be cited. We think that certain authorities referred to by the Attorney-General are clearly distinguishable as is Matter of Broderick v. Colon & Co. (255 N. Y. 609.)

It follows that the remedy under the Workmen’s Compensation Law is not exclusive, that claimant is justified in maintaining this action and is entitled to an award herein.

Barrett, P. J., concurs; Murphy, J., dissents, with opinion.