predisposed him. Here the fainting and the fall were caused by the conditions under which the man was working. We conclude the award should be affirmed. All concur. SUPREME COURT OF NEW YORK. APPELLATE DIVISION, THIRD Department. SPANG BROADWAY BREWING & MA. TING CO. IN RE CENTRAL & WESTERN NEW YORK BREWERS' & MALTSTERS' MUT. INS. CO.* 1. WORKMEN'S COMPENSATION—PLACE OF INJURY—“HAZARDOUS EMPLOYMENT." A collector for a brewery, killed in a saloon away from the plant, was within the protection of Workmen's Compensation Law, § 3, subd. 4. as amended by Laws 1916, c. 622, which includes an employee in the service of an employer carrying on a hazardous employment, although the employee is not actually engaged in a hazardous employment. 2. WORKMEN'S COMPENSATION-"ACCIDENTAL INJURY." Where a collector for a brewery was intentionaly shot and killed for purpose of robbing him of the company money, there was "accidental injury," within the Workmen's Compensation Law, § 29. Appeal from State Industrial Commission. Proceeding under the Workmen's Compensation Law of Anna Spang for compensation for the death of her husband, Charles Spang, opposed by the Broadway Brewing & Malting Company, the employer, and the Central & Western New York Brewers' & Maltsters' Mutual Insurance Company, insurance carrier. There was an award by the State Industrial Commission, and the employer and Insurance Company appeal. Affirmed. Clement & Lee, of Albany (H. Walter Lee, of Albany, of counsel), for appellants. Merton E. Lewis, Atty Gen. (E. C. Aiken, Deputy Atty. Gen., of counsel), for State Industrial Commission. COCHRANE, J. The employer was a manufacturer of malt liquors, which business is classified as hazardous within group 27 of section 2 of the Workmen's Compensation Law. Charles Spang, the employee, was a collector, and while in the performance of his duties as such collector, in a saloon away from the plant of his employer, he was shot and killed. The shooting was * Decision rendered, Mar. 6, 1918. 169 N. Y. Supp. 574. intentional, and the purpose thereof was to secure the money which Spang had on his person belonging to his employer. [1] Under subdivision 4 of section 3 of the Workmen's Compensation Law, as amended by chapter 622 of the Laws of 1916, Spang at the time of his death was within the protection of the act. That amendment was intended to include an employee "in the service of an employer carrying on a hazardous employment, even though such employee is not actually engaged in a hazardous employment." Matter of Claim of Dose v. Moehle Lithographic Co., 221 N. Y. 401, 117 N. E. 616. And by the plain language of the statute it is immaterial whether the shooting of Spang occurred at the plant of the employer "or in the course of his employment away from the plant." He was clearly "in the course of his employment" at the time of his injury. [2] The fact that the death of Spang was intentionally caused does not defeat the claim. He was killed as an incident of his employment, because he had in his possession money belonging to his employer, which it was the purpose of his slayer to feloniously appropriate. An injury caused deliberately and willfully by a third party may be an "accidental injury," within the meaning of the act, from the viewpoint of the employer and employee. Workmen's Compensation Law, § 29; Matter of Claim of Hellman v. Manning Sand Paper Co., 176 App. Div. 127, 162 N. Y. Supp. 335, affirmed 221 N. Y. 492, 116 N. E. 1051; Matter of Claim of Carbone v. Loft, 219 N. Y. 579, 114 N. E. 1062; Matter of Claim of Dietz v. Solomowitz, 179 App. Div. 560, 166 N. Y. Supp. 849; Matter of Claim of Yume v. Knickerbocker Portland Cement Co., 3 State Department Reports, 353, affirmed 169 App. Div. 905, 153 N. Y. Supp. 1151; Matter of Claim of Slane v. Cording & Salzman, 11 State Department Reports, 631, affirmed 179 App. Div. 952, 165 N. Y. Supp. 1112; Matter of Claim of Griffin v. A. Roberson & Son, 176 App. Div. 6, 162 N. Y. Supp. 313; Matter of Claim of Heitz v. Ruppert, 218 N. Y. 148, 112 N. E. 750, L. R. A. 1917A, 344. The award should be affirmed. All concur. SUPREME COURT OF NEW YORK. IN RE YEOPLE. IN RE JOHN B. ROSE CO. IN RE TRAVELERS' INS. CO.* 1. WORKMEN'S COMPENSATION-DEPENDENCY. Where a girl has lived over fifteen years with grandparents, continuously since she was a few days old, her parents, in separating, having given her to them by written agreement, she was entitled, as dependent on her grandfather, to be compensated under the Workmen's Compensation Act for his death, notwithstanding her parents had reunited; it appearing that her mother was lacking in love for her, and that she would not be at home with her father and mother, and that her real home was with her grandmother. 2. WORKMEN'S COMPENSATION-DEPENDENCY. Dependency of a girl upon her grandfather, for whose death she claimed compensation under the Workmen's Compensation Act, being determinable by the conditions existing at the time of the accident, was not affected by the fact that at the time of the hearing on her claim she was earning some wages. or that her mother, as a matter of spite to the grandmother, was offering to take care of her. Cochrane and Lyon, JJ., dissenting. Appeal from State Industrial Commission. Proceeding under the Workmen's Compensation Act to recover compensation for the death of Cornelius Yeople, employee, opposed by the John B. Rose Company, employer, and the Travelers' Insurance Company, insurer. From so much of the award of the State Industrial Commission as grants compensation to claimant, Jennie M. Yeople, as dependent granddaughter of deceased, the employer and insurer appeal. Affirmed. Argued before JOHN M. KELLOGG, P. J., and LYON, WOODWARD, COCHRANE, and HENRY T. KELLOGG, JJ. Amos H. Stephens, of New York City (Clyde Sherwood and William B. Davis, both of New York City, of counsel), for appellants. Merton E. Lewis, Atty. Gen. (E. C. Aiken, Deputy Atty. Gen., of counsel), for State Industrial Commission. JOHN M. KELLOGG, P. J. [1, 2] The mother and father of the claimant gave her to the grandparents when she was a few days. old, and they have maintained her for over 15 years as their child. There was some writing made, giving the child to them, the terms of which do not appear. Apparently, in a separation action between the father and mother, they gave up their rights * Decision rendered, Mar. 6, 1918. 169 N. Y. Supp. 584. to the child to the grandparents, and $2.50 a week by the decree or settlement was allowed the wife for her support. The separation agreement made no provision for the child. The parents have lived next door to the grandparents and the child for years, and have not reclaimed her. It would be degrading for the child to be compelled to leave the grandmother, who had taken the place of mother to her, and return to the father and mother, who had abandoned her; and it would be a gross injustice to the grandmother. The fact that the mother of the child appears in this action, testifying against the child, is evidence of the animosity which she bears to the grandmother and the want of love she has for her own child. It is manifest that the child would not be at home with her father and mother, and that her real home is with her grandmother. The question of dependency is determined by the conditions existing at the time of the accident, and is not affected by the fact that this 15 year old girl was, at the time of the hearing, earning some wages, or that the mother, as a matter of spite to the grandmother, was offering to take care of the child. At the time of the injury the child was dependent solely upon the grandfather for her support and was supported by him.' I favor an affirmance. Woodward and Henry T. Kellogg, JJ., concur. COCHRANE. J. (dissenting). Cornelius Yeople died as the result of injuries received August 16, 1916, and an award has been made to his widow and to Jennie M. Yeople, as an alleged dependent granddaughter. No complaint is made of the award to the widow, but the sole question is whether the granddaughter was dependent on the deceased. She was born October 22, 1901; her father being a son of the deceased. When she was 4 weeks old she was taken to the home of her grandparents, where she has since resided, and has received her entire support from them. The cause of this unsual family disruption was an estrangement between her father and mother. An action for separation was instituted by the mother, and alimony was paid by her husband. After about a year and a half of separation, the parents made another attempt at domestic felicity, and seem to have been measurably successful, inasmuch as they have ever since resided together, and the family now consists of the father and mother and two sons, aged 14 and 10, both going to school. The daughter, by consent of all parties, has remained with her grandparents. The father and grandfather both worked for this same employer at the time of the accident. The earnings of the father were somewhat in excess of those of the grandfather. The latter had an invalid son, an epileptic, entirely unable to earn anything, and living with and dependent absolutely on his father. The claimant herself, since the accident, has been earning $4 or $5 a week working in a button factory. It does not appear that the grandfather had any means of support, except his limited and meager earnings. The statute (Workmen's Compensation Law, § 16, subd. 4) requires that the question of dependency "shall be determined as of the time of the accident." In Matter of the Claim of Birmingham v. Westinghouse Electric & Manufacturing Company, 180 App. Div. 48, 167 N. Y. Supp. 520, this court said, in discussing a question of dependency: "What occurred before or after the date of the accident is of no importance; it is what was the condition on that day." In that case it was held that the findings of the Commission to the effect that a mother, living with her husband, was dependent on her son, were without evidence in their support, and an award in favor of the mother was reversed. It seems clear in the present case that the finding of dependency is absolutely unsupported by the evidence. In the case cited it was said: "No evidence is given to show that she (the mother) was dependent upon him (the son); the most that can be said of the evidence is that it shows that he contributed rather more than his share of the expenditures of a large family; but it does not show that, if these contributions were withdrawn the claimant's husband was not abundantly able to care for her out of his own earnings at the time of the accident. He was not obliged to support the other members of his household; none of them had a legal claim upon him; his duty was to support his wife, and the undisputed facts show that he was earning enough to do this equally as well as it was being done if he merely discharged the duty imposed upon him by law." So in the present case the legal liability to support the claimant rested not on her grandfather but on her father, and it appears that he was equally as able to discharge such liability as was the grandfather. Undoubtedly liability for support does not, in and of itself, under this law which we are now applying, determine a claim of dependency. But when, in addition to such legal liability, it appears that the person so liable was earning more than the deceased and was occupying equally as good a station in life, and that his family was not materially larger than that of the deceased, and that he was able to give his daughter the natural advantages of a home, with the influences and associations of father, mother, and brothers, none of which associations or influences appear to be derogatory to the welfare of the daughter, the claim of dependency, based not on the duty, but on the generosity of a third person, seems to disappear. More especially is this true when the daughter is approaching a time when she has an earning capacity of her own, and can therefore, if necessary, contribute materially to her own support, an advantage which did not exist during the years she was living with her |