Claim of Howe v. Wm. Spencer & Son Corp.

Herlihy, P. J., Greenblott and Cooke, JJ., concur. Reynolds and Staley, Jr., JJ., dissent and vote to reverse and dismiss the claim in the following memorandum: The decedent was not in the course of his employment when he was struck on the public highway. It is uncontradicted that he had left his employment at 1:00 p.m. on December 22 for the Christmas holiday weekend in accordance with the usual custom of the dock workers and his presence at 5:00 p.m. when the fatal accident occurred was for purely personal reasons and unconnected and unrelated to his employment. His death did not arise out of or in the course of his employment, and there is no substantial evidence in the record to the contrary. The highly suspect testimony of the witness Hayes cannot be considered since it was completely uncorroborated (Workmen’s Compensation Law, § 118; Matter of Ohriner v. J amaicé Wet Wash Laundry Co., 5 A D 2d 901 ). The decision of the board should be reversed and the claim dismissed.