ducible, i, e., that death arose out of and in the course of the employment. [4] The trial court having thus concluded upon a basis of rational inference, tantamount to legal proof of the fact, the eighteenth section of the Workmen's Compensation Act (P. L. 1911, p. 134) requires the affirmance of the judgment. Bryant v. Fissell, supra; Sexton v. Telegraph Co., 84 N. J. Law, 85, 86 Atl. 451. We have examined the exceptions to the court's rulings upon disputed testimony, and have concluded that the admission or rejection of the testimony under the well-settled rule applicable to that character of proof was entirely discretionary. Alcott v. Public Service Co., 78 N. J. Law, 482, 74 Atl. 499, 32- L. R. A. (N. S.) 1084, 138 Am. St. Rep. 619. The judgment will thereof be affirmed. COURT OF APPEALS OF NEW YORK. 1. MASTER AND SERVANT-WORKMEN'S COMPENSATION -INJURIES “ARISING OUT OF AND IN COURSE OF EMPLOYMENT." Where an employee, engaged in marking shoe soles with a rubber stamp, while waiting for work crossed the room to bid good-by to a fellow employee who had been drafted, and while leaning on the fellow employee's bench caught his fingers in an unguarded cogwheel, the accident did not "arise out of or in the course of the employment," within the Workmen's Compensation Act. (For other cases, see Master and Servant, Dec. Dig. § 375[1].) (For other definitions, see Words and Phrases, First and Second Series, Course of Employment.) 2. MASTER AND SERVANT-WORKMEN'S COMPENSATION -INJURIES "ARISING OUT OF AND IN THE COURSE OF EMPLOYMENT." In order that an injury, within the Workmen's Compensation Aet, may "arise out of and in the course of employment," it must be received while the workman is doing the duty he is employed to perform and also as a natural incident of the work flowing therefrom as a natural consequence and directly connected therewith. (For other cases, see Master and Servant, Dec. Dig. § 371.) Chase and Crane, JJ., dissenting. Appeal from Supreme Court, Appellate Division, Third Department. Proceedings under the Workmen's Compensation Act by Angelo Di Slavio to recover compensation for the loss of fingers, opposed by the Menihan Company, employer, and the American Mutual Liability Insurance Company, insurance carrier. From an order of the Appellate * Decision `rendered, Jan. 7, 1919. 121 N. E. Rep. 766. Division (170 N. Y. Supp. 1076) unanimously affirming an award of the State Industrial Commission, the employer and the insurance carrier appeal. Reversed. Jeremiah F. Connor, of New York City, for appellants. Merton E. Lewis, Atty. Gen. (E. C. Aiken, of Albany, of counsel), for respondent. HISCOCK, C. J. We are unable to see how the award in this case can be sustained. As found by the Industrial Commission, the claimant was in the employ of defendant Menihan Company, which was engaged in the manufacture of shoes, and his duties consisted in marking soles with a rubber hand stamp. At the time of the accident he "had crossed the room in which he was working to talk to a fellow employee who had been 'drafted and who would be required to leave work on account of the draft in a little while. Di Salvio wished to say good-by to the drafted man before he went to the front, and, while leaning on the bench connected with the splitting machine which was being operated by said employee, the right arm was caught in an unguarded cogwheel, and he sustained the injuries * * (for which the award has been made). At the time that * * * Di Salvio walked across the room to greet his fellow employee, he had finished the work that had been assigned to him and was awaiting the arrival of more work." [1] In our opinion the accident did not in any degree arise out of or in the course of claimant's employment. The courts have been liberal, as they should be, in so interpreting workmen's compensation statutes as to extend in many cases the relationship of employee to acts which seemed to be outside of the strict and ordinary lines of duty, as a basis for compensation. In accordance with this policy, it has been held that the accident "arose out of and in the course of employment" where an injury happened to an employee eating his dinner upon his employer's premises in accordance with express permission of the latter or usual custom (Mann v. Glastonbury Knitting Co., 90 Conn. 116, 96 Atl. 368, L. R. A. 1916D, 86): or to a workman on a telegraph line who had taken refuge during a storm under a freight car and had gone to sleep (Moore v. Lehigh Valley R. R. Co., 217 N. Y. 627, 111 N. E. 1092); or to an employee injured while returning from a cabin on the premises of a railroad company to which employees were permitted to go to eat their meals (Earnshaw v. Lancashire, etc., Ry. Co., 5 B. W. C. C. 28); or to an employee injured by a falling wall while he was taking dinner on his employer's premises (Bloyelt v. Sawyer, 6 B. W. C. C. 16); or to a lighterman, who, while waiting for the tide to ebb, went from his barge to a small boat a short distance therefrom to rest (May v. Isom, 7 B. W. C. C. 148); or to an employee who in accordance with a general practice left the composing room where he worked to go upon the roof and get fresh air on a hot night (Matter of Von Ette, 223 Mass, 56, 111 N. E. 696, L. R. A. 1916D, 641); or to an employee engaged in dumping cars who on a cold night during an interval of leisure for the purpose of protection laid down in a position where he was subsequently injured by a moving car (N. W. Iron Co. v. Industrial Commissioner, 160 Wis. 633, 152 N. W. 416); or even to an employee who was injured while getting down from a moving wagon where he properly belonged to pick up his pipe (McLauchlan v. Anderson, 4 B. W. C. C. 376); or to an employee who was injured in attempting to stop the runaway horse of his employer although his regular work was entirely unconnected with horses (Rees v. Thomas, 1 B. W. C. C. 9); or to an employee who as the result of reproof administered in his line of duty to a fellow workman was struck by the latter in the eye (Matter of Heitz v. Ruppert, 218 N, Y. 148, 112 N. É. 750, L. R. A. 1917A. 344). And this court perhaps went farther than any of these cases in extending the benefits of a compensation act when it held, as it did, in Mat ter of Waters v. Taylor Co., 218 N. Y. 248, 112 N. E. 727, L. R. A. 1917A, 347, that an employee was acting within the scope of his employment so as to be entitled to the benefits of the act when he left his strict line of employment in the attempt to rescue another workman, technically in the employ of an independent contractor, from a danger which threatened his life. We thus held on the broad principle that as between the employee and the employer "it must have been within the reasonable anticipation of his employer that his employees would do just as Waters did if the occasion arose, for it is quite inconceivable that any employer should expect or direct his employees to stand still while the life of a fellow workman working a few feet away was imperiled by such an accident as occurred here, and it seems to us that the accident arose out of his employment." In each of these cases an award was sustained because the court was able fairly to say that between the work for which the employee was engaged and the disputed act which led to the accident there was either naturally or as the result of some act of the employer or of custom a real relationship which brought the accident within the range of employment, and therefore it could be said to have arisen, out of and in the course of the employment. But in the present case we search in vain for any feature or relationship. There was no connection between the employment for which claimant was engaged, of marking soles, and his trip across the shop to say good-by to a fellow employee. This act did not enable him either directly or indirectly, in any tangible sense, the better to perform his work, discharge his duties, or carry forward the interests of his employer. It was not a natural incident to the work for which he was hired. It did not grow out of any emergency where he was justified in taking an unusual step to protect his employer's interests. It was simply and solely the expression of a private desire and the consummation of a personal purpose. However natural and even commendable his act may have been, it was neither beneficial to his employer nor to himself in the way of completing and performing his work. The impulse may be, not unnaturally, to say in justification of it that an employee ought not to be compelled to stand idly at his post while waiting for work and that claimant's deviation from his proper course was only by a few feet. But these reasons will not stand analysis. So far as the first one is concerned, as has been pointed out, it would doubtless be possible for an employee temporarily out of work, and if he could do so without interfering with his duties, to seek some proper and available place for rest without destroying his relation of employee. And so far as concerns the second one, the conduct of an employee in a crowded machine shop is not to be measured by mere distances. In this case claimant went far enough to exchange a perfectly safe occupation for a condition of danger and accident. After all other considerations, the controlling and inevitable question remains whether it is part of the employment of an employee in a shop, hired to perform simple and fixed duties to leave these and visit his fellow workmen on errands of a purely personal character utterly unconnected with his regular duties. We think that the answer to this question is self-evident unless we are to extend the relation of employment for purposes of the Compensation Act (Consol. Laws, c. 67) over areas which will not only be new but difficult to define by any certain or logical boundaries. [2] The tests of such a claim as this were succinctly stated by Judge Pound in Matter of Heitz v. Ruppert, 218 N. Y. 148, 152, 112 N. E. 750, 751 (L. R. A. 1917A, 344): "The injury must be received (1) while the workman is doing the duty he is employed to perform, and also (2) as a natural incident of the work. It must be one of the risks connected with the employment, flowing therefrom as a natural consequence and directly connected with the work." Claimant's injury does not survive these tests and his case comes with in the principles of Matter of O'Toole, 229 Mass. 165, 118 N. E. 303, where it was held that accidental death occurring to a decedent who had temporarily left his employment to talk with a fellow employee about personal matters could not be said to have arisen out of and in the course of his employment so as to become the basis for a claim; of Reed v. Great West, Ry. Co., 78 L. J. K. B. 31, where it was held that an engine driver, who had left his engine while at rest and crossed a siding to receive from a friend a book unconnected with his duties, was not so engaged in his employment that an injury then received by him would be the basis for a claim under the Compensation Act; of Bischoff v. America Car & Foundry Co., 190 Mich. 229, 157 N. W. 34, where it was held that an employee who transgressed his instructions in order to assist a fellow employee in the repair of a machine could not recover compensation for an accident then arising, although the injured employee thought that his acts were for the benefit of his employer; of Smith v. Lancashire, etc., Ry. Co., 1 B. W. C. C. 1, where a ticket collector, having finished his duties, tarried on the footboard of the car for a moment to speak to a passenger and was injured; of Spooner v. Detroit Saturday Night Co., 187 Mich. 125, 153 N. W. 657, L. R. A. 1916A, 17, where an employee was injured while conveying some fellow employees in an elevator to their work as a favor to them and which act was outiside of his line of duty was denied workmen's compensation; of Matter of Gifford v. Patterson, Inc., 222 N. Y. 4, 117 N. E. 946, where it is stated that "When an employee is injured through some act of his own, not an incident to his employment, and not authorized or induced by his employer in connection with his employment, the injury does not arise out of and in the course of his employment within the meaning of * * the Workmen's Compensation Law." We think that the order of Appellate Division and award of the Industrial Commission must be reversed and the claim dismissed, with costs in this court and in the Appellate Division against the Industrial Commission. Collin, Cuddeback, Hogan, and McLaughlin, JJ., concur. Order reversed, etc. COURT OF APPEALS OF NEW YORK. MCINERNEY BUFFALO & S. R. CORPORATION.* 1. MASTER AND SERVANT-WORKMEN'S COMPENSATION -CONCLUSION OF COMMISSION-REVIEW. The court on appeal from a judgment affirming an award of the Industrial Commission having findings of specific circumstances which gave rise to the accident, these, rather than the general conclusions drawn from them by the State Industrial Commission, are to control. (For other cases, see Master and Servant, Dec. Dig. § 418[5].) * Decision rendered, Jan. 7, 1919. 121 N. E. Rep. 806. 2. MASTER AND SERVANT-WORKMEN'S COMPENSATION -“ARISING OUT OF AND IN THE COURSE OF EMPLOYMENT." In proceedings for compensation for the death of a car inspector, who while going to his home for his dinner fell from a trestle about half a mile from the place where he stopped work, but within defendant's railroad yards, held, that finding that accident arose "out of and in the course of his employment" was unwarranted. (For other cases, see Master and Servant, Dec. Dig. § 375[2].) (For other definitions, see Words and Phrases, First and Second Series, Course of Employment.) Appeal from Supreme Court, Appellate Division, Third Department. Proceedings for compensation by Ellen McInerney, widow of Michael McInerney, deceased, against the Buffalo & Susquehanna Railroad Corporation, employer and self-insurer. From an order of the Appellate Division (170 N. Y. Supp. 1096) unanimously affirming a determination of the State Industrial Commission awarding compensation, the Railroad Corporation appeals. Reversed, and claim dismissed. Thomas R. Wheeler, of Buffalo, for appellant. Merton E. Lewis, Atty. Gen. (E. C. Aiken, of Albany, of counsel), for respondent. HISCOCK, C. J. What we regard as the determinative facts which have been found in this case, aside from formal ones, are to the effect that the deceased workman was in the employ of defendant as a car inspector in one of its yards; that he was accustomed to go for his dinner to his home, which was not on the defendant's premises, on week days taking the highway and on Sundays walking on the railroad right of way in order to avoid exposing himself in his working clothes to the view of people on the highway; that he took this route "without objection" on the part of his employer, and in so doing “violated no enforced rule"; that on Sundays he received pay for eleven hours, which included the one which he was permitted to take for dinner; that on the day in question, which was Sunday, as he was thus going to dinner he received injuries causing death by falling from a trestle which was "within the limits of the railroad yards in which yard he performed certain of his duties." [1] The Industrial Commission further found as a conclusion that the accident to deceased "arose out of and in the course of his employment"; but, since we have findings of the specific circumstances which gave rise to the accident, these are to control, rather than the general conclusion drawn from them by the commission. [2] Tested by the general character of the undertaking in which the deceased was engaged at the time of the accident, the latter did not arise in the course of or spring out of his employment. Such a trip of an employee as he was taking is not under ordinary circumstances part of the employment. It is true that it has been held many times that, where an employer requests or customarily permits his employees to eat their meals upon his premises or in some place provided for them, the temporary interrupsion to their work thus caused will not be regarded as terminating their character as employees or as excluding them from the protection of such a law as our Compensation Act (Consol. Laws, c. 67). Highley v. Lancashire, etc., Ry. Co. 9 B. W. C. C. 496, 501; Blovelt v. Sawyer, 6 W. C. C. 16; Morris v. Lambeth Borough Council, 8 W. C. C. 1. This view is in accordance with the rule which prevailed in negligence cases. Heldmaier v. Cobbs, 195 Ill. 172, 62 N. E. 853; Riley v. Cudahy Packing Co., 82 Neb. 319, 117 N. W. 765; Thomas v. Wis. Cent. Ry. Co., |