his way to fix a pipe, but was carrying food to some chickens which he kept on the roof. The Appellate Division affirmed the award unanimously and without opinion: Logarmarssino v. Stanley Co., Case No. 302188, May 23, 1919; App. Div. -, Nov. 12, 1919.

Cases of compensation to employees injured while being transported to and from work by their employers have been presented in Bulletin 87, pages 137, 138. The Court of Appeals has since approved the awarding of compensation in such cases. part of its opinion is as follows:

Pertinent

LITTLER V. FULLER Co., 223 N. Y. 369, May 7, 1918, in part. POUND, J.: Littler, the claimant, was a bricklayer. At the time he was hurt he was working for George A. Fuller Company. It was constructing a residence at Great Neck, L. I., two miles from the railroad station. The workmen, who came out by train, had refused to remain on the job unless the employer would furnish free transportation to and from the work and to the railroad station. The employer hired an automobile truck to take the employees, morning and night, to and from their work. At the end of the day's work on May 22, 1917, when the truck was making its trip to the station, it went into the ditch. Littler was thrown off and injured.

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The industrial commission properly held that the injuries arose out of and in the course of Littler's employment. The vehicle was provided by the employer for the specific purpose of carrying the workmen to and from the place of the employment and in order to secure their services. The place of injury was brought within the scope of the employment because Littler, when he was injured, was on his way * from his duty within the precincts of the company." (Matter of De Voe v. N. Y. State Railways, 218 N. Y. 318, 320.) The day's work began when he entered the automobile truck in the morning and ended when he left it in the evening. The rule is well established that in such cases compensation should be awarded. (Donovan's Case, 217 Mass. 76; Cremins v. Guest, Keen & Nettlefolds, [1908] 1 K. B. 469; Stewart & Son v. Longhurst, [1917] A. C. 249.) The case would be different if at the time of the accident claimant had been on the railroad train on his way to or from Great Neck.

During a street car strike an employer engaged an auto truck for transportation of his employees to work. He established a starting point at a certain street intersection. A foreman, being

late one morning, headed off the truck while it was enroute. The driver would not stop. The foreman tried to jump upon the truck while it was going and hurt his foot so badly that he had to have it amputated at the ankle. The Appellate Division affirmed an award of compensation to him unanimously and with

out opinion: DiFazio v. Lackawanna Bridge Co., S. D. R., vol. 20, p. 378, Apr. 25, 1919; App. Div. -, Nov. 21, 1919.

A street railroad guard finished his run, signed up his time in the despatcher's office and went out upon the platform, apparently to take a train for home. The railroad furnished its employees with free transportation to and from work. Within ten minutes after he had left the despatcher's office his dead body was found on the track about one hundred feet from the station. The third rail had electrocuted him. No one had witnessed the accident. There were various theories as to its cause. Upon appeal from awards to his mother and sister, the Attorney-General said that the employee was entitled to a reasonable margin both as to time and space in leaving his employer's premises. The Appellate Division unanimously affirmed the awards, with opinion as follows:

KOWALEK V. N. Y. CONSOLIDATED RY. Co.,-App. Div.-, Dec. 29, 1919. H. T. KELLOGG, J.: The deceased was killed at about 8:38 p. m. on September 20, 1918, by a current of electricity received from a third rail on a railway of the appellant at Rockaway Park Station. The station consisted of a platform three hundred feet long, elevated five feet above the ground, together with a building at its extreme westerly end, which contained, among other rooms, an office for the despatcher and a room for train crews. Railway tracks came into the station upon each side of the platform, and were joined by a crossover track a short distance to the west of the station building. At about 6 o'clock on the evening in question the deceased, who had worked all day as a flagman about one mile to the west, came into the station and requested extra work of the despatcher. He was assigned as a guard on a train then about leaving. Having made his trip he returned to the station at 8:20, gave in his time to a clerk, and went out upon the platform to take a train, bound west, for his home. There was a train due to leave at 8:32, but he may not have been in time to get aboard this train, for he was seen going through the door of the crew room as the train was pulling out. The next train was due to leave at 8:40. While the cars to make up this train were being shifted on the crossover between the tracks an automatic break on one of them tripped, and the train stopped. Upon examination it was found that the object which tripped the break was the body of the deceased, which lay dead upon the third rail of the crossover, about twenty feet west of the station building. It is not known how the deceased came to be at the point where his body was found. It was suggested by a fellow employee that he jumped aboard a car of the 8:32 train, which, when deceased was last seen alive, had begun to move westerly, and fell therefrom. It was suggested by another employee that he boarded one of the cars being switched for the 8:40 train, supposing they constituted a made-up train homeward bound, and, upon discovering his mistake, stepped off upon the rail which killed him. The

deceased was entitled to journey from his work free of charge upon the cars of the appellant, and while so traveling would have been in the course of his employment. (Russell v. H. R. R. R. Co., 17 N. Y. 134; Ross v. N. Y. C. & H. R. R. Co., 5 Hun, 488; Vick v. N. Y. C. & H. R. R. Co., 95 N. Y. 267; McLaughlin v. Interurban R. R. Co., 101 App. Div. 134.) The deceased was also entitled to a reasonable opportunity, after his work was done, to remove himself from the premises of his employer. (Pope v. Merritt & Chapman Derrick and Wrecking Co., 177 App. Div. 69; Bylow v. St. Regis Paper Co., 179 App. Div. 555.) The ten minutes, which elapsed between the moment when he gave in his time and the moment of the accident, was a reasonable time during which to stay upon the premises of his employer, waiting to take the next train home. Therefore, whether the accident happened while the plaintiff was thus waiting, or after his homeward journey had begun, he was in either case, under the authorities cited, unless guilty of some affirmative act removing him therefrom, still in the course of his employment when death overtook him. The case made was one of a continuing employment so that the burden of proving a cessation thereof fell upon the appellant. That burden was not successfully borne. Upon the question whether the accident arose out of the employment it is sufficient to cite authority for the proposition that accidents occurring to employees while traveling to and from their work in an automobile provided by their employer arise not only in the course of the employment but from hazards incident thereto. (Matter of Littler v. Fuller Co., 223 N. Y. 369.) Therefore, I think the award should be affirmed.

Award unanimously affirmed.

A supervisor of town highways lost his life by the overturning of his automobile while he was transporting some highway employees from their job to their homes. Upon appeal from an award to his widow, the insurance carrier protested that he had no duty to carry the men. The Appellate Division reversed the award and dismissed the claim upon the ground that the deceased was an officer and not an employee: Bartz v. Township of Lockport, Death Case, No. B-10408, Mar. 21, 1919; App. Div. -, Dec. 29, 1919.

During a strike an employer was escorting some strike breakers after their day's work afoot from his plant along the public streets to a subway station with the idea that his presence would prevent assault upon them by strikers. They were set upon, however. The Commission awarded compensation for injury by the assaulters to one of them upon recommendation of Commissioner Lyon, who said:

ROMANO V. SIFF BROS., S. D. R., vol. 20, p. 430, Bul., vol. 4, p. 189, May 28, 1919, in part.

I think the fact that the employer himself deemed it a wise precaution to accompany the injured man makes it somewhat analogous to the cases where the accident occurred while the employer is furnishing transportation to his employees to and from their place of work.

Other recent Commission awards to employees injured while coming to or leaving work are: Henry v. Hammond, S. D. R., vol. 16, p. 435, Bul., vol. 3, p. 176, Apr. 23, 1918; Flannery v. .Gobel, S. D. R., vol. 17, p. 586, Bul., vol. 3, p. 220, June 11, 1918; McCarthy v. U. S. Industrial Alcohol Co., Bul., vol. 4, p. 105; Haworth v. Brown, S. D. R., vol. 20, p. 389, Bul., vol. 4, p. 170, Apr. 30, 1919; and Alterman v. Namm & Son, S. D. R., vol. 20, p. 432, May 31, 1919. The Appellate Division affirmed the award in the Alterman case, Dec. 29, 1919, with opinion which appears below, page 141.

4. LIVING UPON PREMISES

A janitress lived in her employer's building, occupying an apartment as part of her pay. Plastering from her kitchen ceiling fell upon her shoulder and disabled her as she was about to sit down to breakfast. Upon appeal from an award to her, the employer protested that under such finding she would be entitled to compensation even if asleep in bed, that she was in the double status of janitress and tenant and was injured as tenant. The Appellate Division reversed the award and dismissed the claim with opinion, one justice dissenting. The opinion is as follows:

LAUTERBACH V. JARRETT, 189 App. Div. 303, Nov. 12, 1919. COCHRANE, J.: The employers maintain an apartment house five stories high. On each floor there are two apartments, each apartment consisting of five rooms, all the apartments being similar. In one of the apartments on the first floor the claimant resided with her family, consisting of herself and her husband and their two children. She was the janitress of the building. As compensation for her services she was given five dollars monthly, the free use of her apartment and gas for the same.

One morning while about to sit down at her kitchen table to eat breakfast some plaster from the kitchen ceiling fell on the claimant, causing her some injuries for which the award herein has been made on the theory that the accident arose out of and in the course of her employment as janitress. She was not at the time doing any work for her employer.

It has been held many times that when an employer customarily permits his employees to eat their meals upon his premises they are not thereby excluded from the protection of such a law as the Workmen's Compensation Law. The cases to that effect are collated in Matter of Di Salvio v. Menihan Company (225 N. Y. 123, 126); Matter of McInerney v. Buffalo & Susquehanna Railroad Corporation (Id. 130, 133) and Matter of Moore v. Lehigh Valley Railroad Company (169 App. Div. 177, 183). The theory of those cases is that a temporary suspension of the work for the purpose of eating without leaving the work to go to the domicile of the employee for that purpose is incidental to the employment and does not terminate or suspend for the time being the relation of master and servant.

The principle of those cases does not apply to such a situation as here exists. The case is no different from what it would be if the claimant, although janitress of the building in question, had occupied an apartment in another building and the accident had there occurred. In no proper sense can it be said that she was janitress of her own apartment merely because it happened to be a part of the building of which she was the janitress. In her own apartment she presided over her household affairs and was serving, not her employers, but herself and her family. If this award can be sustained so also it should be sustained if the plaster had fallen on her at night while she was sleeping or while doing any ordinary housework for the requirements or convenience of her family. At the time of the accident she was doing nothing for her employers nor anything incidental thereto. Her duty to them did not require her presence in her apartment. What she was doing was personal to herself. It was entirely disassociated with the work of her employers.

In Matter of Daly v. Bates & Roberts (224 N. Y. 126) the claimant was a laundress in a hotel and as part of her compensation received her board and lodging and the privilege of using the laundry plant of her employer to do her own laundry work. While thus engaged in working for herself she was injured. It was held that she was not working for her employer but for herself and her claim for compensation was dismissed. In that case it is true the claimant had regular working hours and the accident occurred after the time when her duties to her employer ceased. But that circumstance does not differentiate the case in principle from the present ase. It does not appear in the instant case whether or not by the terms of employment of the claimant her duties were limited to specified portions of the day. I am assuming, however, that she was always on duty when the circumstances required her services. But with that assumption the fact is that she was not doing anything for her employers at the time of the accident but was serving exclusively her own purpose. What she was doing did not promote the interests of her employers nor was it in any proper sense incidental thereto. She was in the building in a dual capacity. Her family was domiciled in one of the apartments. Her personal relations to her family were distinct and separate from her relations to her employers as janitress of the building. She was acting solely for herself as a member of her family at the time of the accident. In Matter of Di Salvio v. Menihan Company (225 N. Y. 123) the claimant had merely crossed the room to say farewell to another employee who had been drafted, and while talking to him was injured, and it was held that he