Claim of Syvertson v. Estate of Freudenberg , 1958 N.Y. App. Div. LEXIS 3720 ( 1958 )

Appeal by employer and insurance carrier from award in favor of claimant resulting from a heart accident. On May 1, 1955, decedent was employed as a superintendent of an apartment house in New York City and among his duties was that of collecting and removing garbage from the apartments and stores and taking it in cans to the street -for collection by the Sanitation Department. This procedure was followed each night except Saturday so that on Sunday, the night of the accident, there was an accumulation of 10 to 12 cans of refuse and three sacks of papers and boxes which claimant took from the basement up 11 steps to the street level. He testified that while doing this work he felt a weakness overcome him and that shortly after completing his duties he felt a sudden sharp chest pain. The doctor who attended the claimant diagnosed his condition as a coronary occlusion with myocardial infarction and the dispute medically was centered primarily over the issue as to when the pain first started. The board found that the weight of the evidence adduced indicated that claimant sustained an accidental injury arising out of and in the course of his employment, which finding is one of fact supported by substantial evidence. (Matter of Masse v. Robinson Co., 301 N. Y. 34, 37.) The appellants further objected to a finding of substituted hiring on the basis of the credibility of the testimony. We have on many occasions stated that credibility is one of fact and the decision of the board is final. Decision and award unanimously affirmed, with costs to the Workmen’s Compensation Board. Present.— Foster, P. J., Bergan, Gibson, Herlihy and Reynolds, JJ.