1919.] Statement of case. [225 N. Y.] appeal to be taken with the same force and effect as if the appeal were one of right, and when so taken section 1316 of the Code applies to it. But an order of reference under the authorities is not one which necessarily affects the final judgment. (Van Marter v. Hotchkiss, 4 Abb. Ct. App. Dec. 484; Bloom v. National United Benefit Savings & Loan Company, 81 Hun, 120; affd., 152 N. Y. 114; Roslyn Heights Land Co. v. Burrowes, 22 App. Div. 540.) The judgment appealed from should be reversed and a new trial granted, with costs to abide the event. HISCOCK, Ch. J., HOGAN, CARDOZO and Pound, JJ., concur; CHASE and MCLAUGHLIN, JJ., concur in result, but hold that an order directing a reference in a case where the parties are entitled to a jury trial as matter of right necessarily affects the final judgment within the provisions of section 1316 of the Code. Judgment reversed, etc. In the Matter of the Claim of ANGELO DI SALVIO, Respondent, against THE MENIHAN COMPANY et al., Appellants. STATE INDUSTRIAL COMMISSION, Respondent. Workmen's Compensation Law claimant injured while visiting another workman across the room from place where claimant was employed - accident did not arise out of or in course of claimant's employment. 1. An award under the Workmen's Compensation Law can be sustained only where the court is able fairly to say that between the work for which the employee was engaged and the disputed act which led to the accident there was either naturally or as the result of some act of the employer or of custom a real relationship which brought the accident within the range of employment, and, therefore, it could be said to have arisen out of and in the course of the employment. 2. The claimant was in the employ of defendant which was engaged in the manufacture of shoes, and his duties consisted in marking soles [225 N. Y.] Points of counsel. [Jan., with a rubber hand stamp. At the time of the accident claimant had crossed the room in which he was working to say good-bye to a fellow-employee who had been drafted and who would be required to leave work on account of the draft, and while leaning on the bench connected with the splitting machine which was being operated by his fellow-employee, his right arm was caught in an unguarded cogwheel, and he sustained the injuries for which the award has been made. At the time that claimant walked across the room to greet his fellow-employee, he had finished the work that had been assigned to him and was waiting the arrival of more work. Held, that the accident did not in any degree arise out of or in the course of claimant's employment. (Matter of Heitz v. Ruppert, 218 N. Y. 148, followed; Matter of Waters v. Taylor Co., 218 N. Y. 248, distinguished.) Matter of Di Salvio v. Menihan Co., 184 App. Div. 922, reversed. (Argued November 12, 1918; decided January 7, 1919.) APPEAL, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered May 27, 1918, unanimously affirming an award of the State Industrial Commission made under the Workmen's Compensation Law. The facts, so far as material, are stated in the opinion. Jeremiah F. Connor for appellants. The injury did not arise out of and in the course of the employment. (Matter of Daly v. Bates & Roberts, 224 N. Y. 126; Matter of Gifford v. Patterson, 222 N. Y. 4; Matter of Sanger v. Locke, 220 N. Y. 556; Matter of De Fillippis v. Faulkenberg, 170 App. Div. 153; 219 N. Y. 581; Matter of Heitz v. Ruppert, 218 N. Y. 148; Matter of O'Neil v. Carley Heater Co., 218 N. Y. 414; Spooner v. Detroit Saturday Night Co., 153 N. W. Rep. 657; Bischoff v. American Car Foundry Co., 157 N. W. Rep. 34; Matter of O'Toole, 118 N. E. Rep. 303; Hallet's Case, 119 N. E. Rep. 673; Matter of Betts, 118 N. E. Rep. 551; Brienen v. Wisconsin Public Service Com., 163 N. W. Rep. 182; Mann v. Glastonbury Knitting Co., 96 Atl. Rep. 368; Smith v. Crescent Belling & Packing Co., 37 N. J. L. 292; Keene v. St. Clemenis' Press, 7 B. W. C. C. 542.) 1919.] Opinion, per HISCOCK, Ch. J. [225 N. Y.] Merton E. Lewis, Attorney-General (E. C. Aiken of counsel), for respondent. The injury to the claimant arose out of and in the course of his employment. (Waters v. Taylor Co., 218 N. Y. 248; Matter of O'Toole, 118 N. E. Rep. 303; Heitz v. Ruppert, 218 N. Y. 148; Matter of Hallet, 119 N. E. Rep. 673; Mann v. Glastonbury Knitting Co., 96 Atl. Rep. 368; Moore v. L. V. R. R. Co., 217 N. Y. 627; Sundine's Case, 218 Mass. 1; Matter of Von Ette, 111 N. E. Rep. 696.) HISCOCK, Ch. J. We are unable to see how the award in this case can be sustained. As found by the industrial commission the claimant was in the employ of defendant Menihan Company, which was engaged in the manufacture of shoes, and his duties consisted in marking soles with a rubber hand stamp. At the time of the accident he "had crossed the room in which he was working to talk to a fellow-employee who had been drafted and who would be required to leave work on account of the draft in a little while. Di Salvio wished to say good-by to the drafted man before he went to the front, and while leaning on the bench connected with the splitting machine which was being operated by said employee, the right arm was caught in an unguarded cogwheel, and he sustained the injuries * (for which the award has been made). At the time that * * * Di Salvio walked across the room to greet his fellow-employee, he had finished the work that had been assigned to him and was awaiting the arrival of more work." In our opinion the accident did not in any degree arise out of or in the course of claimant's employment. The courts have been liberal, as they should be, in so interpreting workmen's compensation statutes as to extend in many cases the relationship of employee to acts which seemed to be outside of the strict and ordinary lines of duty, as a basis for compensation. In accord * * * * * [225 N. Y.] Opinion, per HISCOCK, Ch. J. [Jan., ance with this policy it has been held that the accident arose out of and in the course of employment where an injury happened to an employee eating his dinner upon his employer's premises in accordance with express permission of the latter or usual custom (Mann v. Glastonbury Knitting Co., 96 Atl. Rep. 368); or to a workman on a telegraph line who had taken refuge during a storm under a freight car and had gone to sleep (Moore v. Lehigh Valley R. R. Co., 217 N. Y. 627); or to an employee injured while returning from a cabin on the premises of a railroad company to which employees were permitted to go to eat their meals (Earnshaw v. Lancashire, etc., Rway. Co., 5 W. C. C. 28); or to an employee injured by a falling wall while he was taking dinner on his employer's premises (Blovelt v. Sawyer, 6 W. C. C. 16); or to a lighterman, who, while waiting for the tide to ebb, went from his barge to a small boat a short distance therefrom to rest (May v. Isom, 7 B. W. C. C. 148); or to an employee who in accordance with a general practice left the composing room where he worked to go upon the roof and get fresh air on a hot night (Matter of Von Ette, 111 N. E. Rep. 696); or to an employee engaged in dumping cars who on a cold night during an interval of leisure for the purpose of protection laid down in a position where he was subsequently injured by a moving car (N. W. Iron Co. v. Industrial Commission, 160 Wis. 633); or even to an employee who was injured while getting down from a moving wagon where he properly belonged to pick up his pipe (M'Lauchlan v. Anderson, 4 B. W. C. C. 376); or to an employee who was injured in attempting to stop the runaway horse of his employer although his regular work was entirely unconnected with horses (Rees v. Thomas, 1 W. C. C. 9); or to an employee who as the result of reproof administered in his line of duty to a fellow-workman was struck by the latter in the eye (Matter of Heitz, v. Ruppert, 218 N. Y. 148). 1919.] Opinion, per HISCOCK, Ch. J. [225 N. Y.] And this court perhaps went farther than any of these cases in extending the benefits of a compensation act when it held, as it did, in Matter of Waters v. Taylor Company (218 N. Y. 248) that an employee was acting within the scope of his employment so as to be entitled to the benefits of the act when he left his strict line of employment in the attempt to rescue another workman, technically in the employ of an independent contractor, from a danger which threatened his life. We thus held on the broad principle that as between the employee and the employer" It must have been within the reasonable anticipation of his employer that his employees would do just as Waters did if the occasion arose, for it is quite inconceivable that any employer should expect or direct his employees to stand still while the life of a fellowworkman working a few feet away was imperiled by such an accident as occurred here, and it seems to us that the accident arose out of his employment." In each of these cases an award was sustained because the court was able fairly to say that between the work for which the employee was engaged and the disputed act which led to the accident there was either naturally or as the result of some act of the employer or of custom a real relationship which brought the accident within the range of employment, and, therefore, it could be said to have arisen out of and in the course of the employment. But in the present case we search in vain for any such feature or relationship. There was no connection between the employment for which claimant was engaged, of marking soles, and his trip across the shop to say good-by to a fellow-employee. This act did not enable him either directly or indirectly, in any tangible sense, the better to perform his work, discharge his duties or carry forward the interests of his employer. It was not a natural incident to the work for which he was hired. It did not grow out of any emergency where he was |