was serving his own purposes and that the accident did not arise out of and in the course of his employment. In the opinion cases are cited from other jurisdictions sustaining the decision.

In Matter of Urban v. Topping Brothers (184 App. Div. 633) it was so held also in a case where an employee on quitting work for the day but before leaving the premises returned for some companions who usually accompanied him home and was killed.

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The rule has been enunciated and reiterated that the injury to be within the protection of the statute must be received "while the workman is doing the duty he is employed to perform " and that it must be one of the risks connected with the employment, flowing therefrom as a natural consequence and directly connected with the work." (Matter of Heitz v. Ruppert, 218 N. Y. 148, 152; Matter of Di Salvio v. Menihan Company, supra; Matter of Daly v. Bates & Roberts, supra.)

Both on principle and authority, therefore, I think this claim cannot be sustained.

The award should be reversed and the claim dismissed. All concurred, except JOHN M. KELLOGG, P. J., dissenting. Award reversed and claim dismissed.

A company manufacturing munitions maintained a public restaurant and provided a woman employee of the restaurant with living accommodations upon the premises of the plant. An automobile ran down and injured the woman as she was returning to her quarters along a private street of the plant premises after having had her photograph taken by order of her superintendent and in accordance with wartime precautions. The Commission, one Commissioner dissenting, found that her injuries arose out of and in the course of her employment and awarded compensation to her. Upon appeal, the employer declared that she was simply a domestic servant and that she had been escorted out of the gates of the plant proper and into a street that was open to the general public before she met with the accident: McCaffrey v. Dupont, De Nemours & Co., S. D. R., vol. 20, p. 372, Apr. 4, 1919; App. Div., reversed upon extra-territorial grounds, Nov. 21,

1919.

5. LUNCH INTERVAL UPON PREMISES

As a general rule accident to an employee who spends the midday lunch interval upon his employer's premises is held compensatable, no matter what he may have been doing when hurt. The Commission has awarded death benefits in two unwitnessed deaths of employees attempting to use elevators for their own personal purposes, during lunch time: Donlon v. Kips Bay Brewing

and Malting Co., Death Case, No. 227250, Apr. 30, 1919; Taub v. Empire Fireproof Door Co., S. D. R., vol. 20, p. 401, May 2, 1919; and has awarded compensation in a third elevator accident where the injured employee had been home to lunch, had returned to his employer's premises and, according to the employer, met with his accident while on the way to the roof to feed some chickens that he kept there: Logarmarssino v. Stanley Co., Case No. 302188, May 23, 1919. The Appellate Division unanimously affirmed the Donlon and Logarmarssino awards, November 12, 1919, and the Taub award, December 29, 1919. Its affirmations in the Logarmarssino and Taub cases were without opinion. Its affirmation in the Dolan case was with opinion, as follows:

DONLON V. KIPS BAY BREWING & MALTING Co., 189 App. Div. 415, Nov. 12, 1919.

H. T. KELLOGG, J.: The deceased was found dead at the bottom of an elevator shaft in the plant of his employer at about eleven-thirty o'clock in the forenoon. His regular work consisted of carrying and emptying buckets of beer, and was performed in a cellar room of the brewery in which he was employed. Adjoining this room was a lunch room in which the men employed in the cellar took their lunch between the hours of eleven and twelve. The room in which the deceased worked was windowless, cold, wet, and badly ventilated. For this reason the deceased and his fellow-employees, after their lunch, customarily went to the ground floor to walk about and get the fresh air. In one of the rooms upon this floor there was a bar at which beer was served without charge. There was also a toilet which the men commonly used during the noon hour. Through the room adjoining there passed the shaft of the elevator, at the bottom of which, in the cellar below, the body of the deceased was found. The deceased ate his lunch in the lunch room between eleven and eleven twenty-five in the forenoon, and went upstairs. If the deceased had been killed while eating lunch in this room his death would have occurred in the course of his employment. (Matter of McInerney v. B. & C. R. R. Corp., 225 N. Y. 130.) If, during the lunch hour, he fell down the elevator shaft while walking about on the ground floor to get the air, to go to the toilet, to warm up, to drink beer or to rest, as cellarmen were expected to do, his case could not logically be distinguished from the case assumed. It must be presumed that he was present on the ground floor for. some one or more of these legitimate purposes of his employment, that while so present he accidentally fell down the elevator shaft, and that while in the course of his employment he was killed. (Driscoll v. Gillen & Sons, 226 N. Y. 12, affg. 187 App. Div. 908.)

The award should be affirmed. Award unanimously affirmed.

6. PREPARING LUNCH

The following two accidents occurred, one during work, the other during a noon interval.

A woman inspector in an underwear factory hurt her foot in a depression in the floor of her employer's boiler room to which she had gone for the purpose of setting a bottle of tea on the boiler. The Appellate Division, one justice dissenting, affirmed an award to her, saying that "It was sufficient if she was performing some act upon the premises of her employer which, though directly beneficial to herself, was an ordinary incident of a day of employment." Full text of its opinion is as follows: ETHERTON V. JOHNSON KNITTING MILLS Co., 184 App. Div. 820, Nov. 13, 1918. H. T. KELLOGG, J.: Claimant was injured during working hours at the plant of her employer. She came to the plant at about seven A. M., went to the basement, set a bottle of tea on the boiler, and while on her way back to the floor above slipped and fell at the foot of the staircase. If claimant, during working hours, had suspended work to go to a cloakroom to change her clothes, to a washroom to wash up or use the toilet, and while in such room had been injured, she could, under the authorities, have had an award. (Chludzinski v. Standard Oil Co., 176 App. Div. 87; Sexton v. Public Service Commission, 180 id. 111; De Filippis v. Falkenburg, 170 id. 153.) In order to be acting in the course of her employment, therefore, it was not necessary that she should have been actually engaged in the work thereof. It was sufficient if she was performing some act upon the premises of her employer which, though directly beneficial to herself, was an ordinary incident of a day of employment. This claimant was performing such an act in placing her bottle of tea upon the boiler to keep it hot for a midday meal. Of course, if she had been forbidden to enter the boiler room she was acting in violation of her duty, and, therefore, not in the course of her employment. It is true that her employer had long previously promulgated a rule prohibiting the use of the boiler room and the boiler by its employees. However, it was the common practice of employees at the time of the accident to make use of the room as did the claimant. The acquiescence of the employer in this practice was sufficient to abrogate the rule. Also, the injuries sustained by claimant arose through an accident arising out of her employment. Injuries due to slipping or tripping on stairs or floors have been held to be due to accidents arising out of the employment. (Leslie v. O'Connor & Richman, Inc., 173 App. Div. 988, affg. 5 State Dept. Rep. 383; Naro v. Rueckheim Bros. & Eckstein, 175 App. Div. 958, affg. 7 State Dept. Rep. 484.) The case of Daly v. Bates & Roberts (224 N. Y. 126) in no wise militates against a recovery here, for in that case the claimant, entirely beyond the limits of her working day, was performing labor for herself, and at the time was in no sense an employee. So of Manor v. Pennington (180 App. Div. 130). There the employee, during the noon hour, was injured by an explosion of a boiler in a basement, while eating his dinner, but in that accident the basement was

not in the possession or occupation of his employer. The Workmen's Compensation Law makes a distinction between injuries received at the plant or upon the premises of the employer, and those received elsewhere. The authorities cited amply justify an award.

The award should be affirmed. All concurred, except CоCHRANE, J., dissenting. Award affirmed.

The foreman of a veneer and saw mill shut down the plant for the noon interval and proceeded to put a pail of tea for his lunch on a stove beside the tea pail of a fellow workman when the lid blew off the fellow workman's pail and the boiling tea burned his face and eyes. The Appellate Division affirmed an award to him unanimously and without opinion: Lavancha v. Kimball & Son, S. D. R., vol. 17, p. 623, July 25, 1918; 187 App. Div. 962, Mar. 5, 1919.

7. PROCURING LUNCH

A trolley car conductor customarily visited a restaurant between trips while in charge of his car. As he was returning from the restaurant to the car an automobile ran him down. The accident occurred on the public highway. The Commission awarded him compensation. The Appellate Division reversed the award and dismissed his claim upon authority of the McInerney decision, 225 N. Y. 130: Wood v. Jamestown, Westfield & Northwestern Ry. Co., Case No. 7423, Jan. 16, 1919; 188 App. Div. 985, June 30, 1919.

A chauffeur's helper in the employ of lumber dealers left his vehicle to get some cake from a bakery. An automobile of a third party ran him down and killed him. The Commission awarded death benefits to his wife and children. There was difference of opinion as to whether he was procuring the cake for immediate consumption by himself or for consumption by his family next day (S. D. R., vol. 18, p. 61, Bul., vol. 4, p. 102). The Appellate Division found that his intention had been to satisfy immediate pangs of hunger. It distinguished his accident from regular noon-day interval accidents off of the employer's premises. Its opinion, with decision, unanimously affirming an award to his widow, is as follows:

SZTORC V. STANSBURY, 189 App. Div. 388, Nov. 12, 1919.

H. T. KELLOGG, J.: On the day of the accident the deceased had made a trip upon a truck, as helper to a chauffeur, to deliver a load of lumber for

his employer. On the return journey the truck was stopped opposite a bakery at about four P. M. The chauffeur descended, crossed to the bakery, and bought two cakes to use at his breakfast the following day. On returning to the truck he offered a cake to the deceased, who gave it back, saying: Willie, I will get ten cents cake." Thereupon the deceased left the truck to go to the bakery, and, having proceeded about ten feet, was struck down by an automobile, and instantly killed. The truck had left the plant of the employer at about eleven thirty in the morning. Just previously thereto an official of the employer suggested to the chauffeur that he get his lunch before he started. The deceased did not accompany the chauffeur when he went to get his lunch but remained at the plant. Usually he brought his midday meal to the plant, but on this day he had not done so, for it was Saturday when as a rule his work ended at twelve o'clock. He had no money in his pocket until just before he started on the trip, at which time he received his weekly pay. Consequently until then he had no money to buy a meal, and throughout the journey to the moment of his death he did not eat. The natural inference from the proof, aided by the presumption of section 21 of the Workmen's Compensation Law, leads to the conclusion that from breakfast until four o'clock, when the accident occurred, the deceased had had no food, and that being hungry he had started across the street to get some cakes with which he might presently stay his hunger. (Matter of Driscoll v. Gillen & Son Lighterage, Inc., 226 N. Y. 568, affg. 187 App. Div. 908.) The case is comparable to those where employees are killed or injured while seeking shelter from a storm, or while going to a nearby place to answer the calls of nature. (Matter of Moore v. Lehigh Valley R. R. Co., 169 App. Div. 177; Krawczyk v. MacNamara, 187 id. 911.) It is wholly unlike those where accidents occur during the noon hour, when employees are on their way to or from the plant to get their noon-day meals. In that class of cases injuries are received during a definite period set apart as belonging exclusively to employees, during which they may go where they choose and do what they please, subject to no orders from their employers and freed from all duty or responsibility in reference to their employment. In this instance the employee was at all times in the immediate vicinity of his employer's truck, which had stopped but momentarily, and his duty to care for it, to return to it, and help bring it home, had not ceased. It was not as if the truck had been placed in a garage while the deceased, upon his own time, had gone to a restaurant to get a meal. Nor was it as if the deceased had abandoned the truck and had gone to a saloon or drug store, not to satisfy a need of eating because of an omitted meal, but to regale himself with refreshing drinks, and otherwise indulge himself. The deceased was hungry because his employment that day had left him without food for many hours, and it was necessary for the continuance of his work that he should have food. It was precisely as if the deceased had descended from the truck on a hot day to get a glass of water to satisfy his thirst. It seems to me that the deceased did not step out of his employment when he went toward the bakery to get some cakes to carry to the truck, in order to eat the same on the journey home, and that his death arose in the course of his employment.

The award should be affirmed. Award unanimously affirmed.