Swanson v. Tefft

211 A.D. 821

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 15, 1924
• Status: Published

Opinion

Per Curiam:

There is substantial evidence that claimant participated in the drunken brawl and assaulted Petrowsky before the latter shot the claimant. If such is the , fact, claimant is not entitled to an award. (Griffin v. Roberson & Son, 176 App. Div. 6; Stillwagon v. Callan Brothers, Inc., 183 id. 141; affd., on opinion below, 224 N. Y. 714.) Not only is there direct evidence that claimant struck Petrowsky and knocked him down but there is uncontradicted evidence that the latter after the affray was bruised and otherwise injured. The finding that “ claimant thereupon led said fellow-employee, one Petrowsky, from said passageway and out of his own way into Petrowsky’s room ” is evasive of the essentially vital question in the ease. That question is whether claimant assaulted Petrowsky and it is not covered or decided by the findings as made. We think there should be a specific finding on that question. Award reversed and matter remitted to the State Industrial Board, with costs against said Board to a,bide the event..

All concur.