Claim of Vesper v. Colonial Radio Corp. , 81 N.Y.S.2d 794 ( 1948 )

An appeal by the employer and its insurance carrier from a decision and award made by the Workmen’s Compensation Board allowing compensation to the claimant covering one and one-fifth weeks disability during the period between May 30, 1947, and June 9, 1947, and continuing the case. The claimant was employed as a, radio analyzer and while in the washroom on the employer’s premises a fight occurred between claimant and a coemployee and claimant was injured. The evidence reveals that the claimant and the coemployee were talking about parachutes when the fight occurred and claimant was struck on the head. It also reveals that claimant had previously had trouble with other employees and threats were directed at him because he was turning out more work than they did. At the time claimant was struck he was rendered unconscious and did not remember anything until he was in the hospital. The claimant did not initiate or institute the assault. The board found that at the time the alleged fight occurred the acts of the claimant were incident to and a risk of the employment, and that the accidental injuries arose out of and in the course of claimant’s employment. The evidence sustains the finding of the board. Award unanimously affirmed, with costs to the Workmen’s Compensation Board. Present — Hill, P. J., Heffernan, Brewster, Russell and Deyo, JJ.