Opinion
May 15, 1940.
Appeal from State Industrial Board.
Present — Hill, P.J., Crapser, Heffernan, Schenck and Foster, JJ.
On two previous occasions this case was appealed to this court by claimant ( 247 App. Div. 830; 255 id. 237) and in each instance the court reversed the determination of the State Industrial Board disallowing the claim. It is stipulated that the only issue raised by the employer and carrier-appellants is that the alleged accident did not arise out of or in the course of claimant's employment. It is undisputed that decedent was assaulted by a fellow employee and as the result received serious injuries which eventually resulted in his death. The State Industrial Board has found that decedent did not initiate the assault and was in no wise the aggressor. The findings of the State Industrial Board are supported by the evidence. Decedent was performing his duties at the time of the assault. The award should be affirmed. Award unanimously affirmed, with costs to the State Industrial Board.