Opinion
January, 1929.
Award affirmed, with costs to the State Industrial Board. Davis, Whitmyer and Hill, JJ., concur; Van Kirk, P.J., and Hinman, J., dissent, on the ground that the act of claimant in striking the torpedo with his hammer, as he walked along the tracks, was not dictated or suggested by his employment or his employer's interests, since he was not in the employ of the railway, but was a mere sportive act on his part which alone was responsible for his injury which did not arise out of his employment. ( Frost v. Franklin Mfg. Co., 204 App. Div. 700; affd., 236 N.Y. 649.)