Opinion
June 16, 1955.
Appeal from Workmen's Compensation Board.
Present — Foster, P.J., Bergan, Halpern, Imrie and Zeller, JJ.
Claimant was employed as a porter in a moving picture theatre in Brooklyn. As part of a scheme of robbers to hold up the theatre claimant was seized and kidnapped by the holdup men on the corner of the block on which the theatre was located after quitting his job late at night while walking toward his home. Claimant testified this occurrence was "on the corner of where I worked". His captors held him by force for eleven hours. He was assaulted and sustained injuries on which the claim is based. While he was being held captive his assailants sought to get information from claimant about the hours the theatre was opened and the place the money was kept to enable them to prosecute their robbery of the employer's premises. While he was being held the theatre was actually held up. There is some proof to suggest that the claimant's captors had come into the theatre before he was attacked, and it is reasonable to infer that claimant was either seen there and the purpose formed to capture him in aid of the robbery, or he was observed by them when he left the theatre and followed or observed to the next corner where he was seized. No one disputes that the injuries arose "out of the employment"; the issue is whether they rose "in the course of" the employment. The test is whether the claimant had sufficiently separated himself from the employment as to break contiguity with it. In this case we think that is a question of fact. The closeness in point of time and distance from the theatre to the place of assault; the plan of the robbers to commit the crime in the place of employment, and the capture and injury of the claimant on the adjacent corner, are so related as to have that unity required for an injury arising "in the course of employment". ( Matter of Field v. Charmette Knitted Fabric Co., 245 N.Y. 139.) Award unanimously affirmed, with costs to the Workmen's Compensation Board.