Opinion
June 21, 1962
Present — Bergan, P.J., Gibson, Herlihy, Reynolds and Taylor, JJ.
Appeal by claimant from a decision of the Workmen's Compensation Board, one member dissenting, affirming the decision of a Referee which disallowed his claim predicated upon an alleged industrial accident. In its decision the board noted that at the time of his injury claimant was in the employ of his father and that claimant and his mother, who kept the books of the employer, were the only witnesses who testified in support of the claim. Adverting to the superior opportunity of the Referee to appraise their veracity, the board upon review adopted the evaluation implicit in his finding that the accident did not arise out of and in the course of employment and in effect also rejected their testimony. What we said in two recent decisions is apposite here: "The question of credibility is strictly within the province of the board and it was not bound as a matter of law to accept the testimony of claimant and his employer. The rejection of this evidence denuded the record of proof connecting the accident with the employment. ( Matter of Daus v. Gunderman Sons, 283 N.Y. 459; Matter of Gordon v. Gordon Hyman, 11 A.D.2d 833, motion for leave to appeal denied 8 N.Y.2d 710; Matter of Brenner v. Utilities Laundry, 14 A.D.2d 626.)" ( Matter of Manolakis v. Edison S.S. Corp., 15 A.D.2d 845-846; Matter of Van De Walker v. Syracuse Bowling Center, 16 A.D.2d 728. ) Decision unanimously affirmed, without costs.