Opinion
Argued May 2, 1927
Decided May 10, 1927
Appeal from the Supreme Court, Appellate Division, Third Department.
Clarence R. Runals for appellant.
Albert Ottinger, Attorney-General ( E.C. Aiken of counsel), for respondents.
Order of Appellate Division affirming award of the State Industrial Board should be reversed upon the ground that the award is not supported by any evidence. The presumption arising from the provisions of section 21, subdivision 4, of the Workmen's Compensation Act (Cons. Laws, ch. 67) that death did not result solely from intoxication has been thoroughly and completely rebutted by the employer. The evidence points unerringly to the fact of intoxication and to intoxication as the sole cause of the accident. ( Matter of Case, 214 N.Y. 199.)
The order of the Appellate Division should be reversed and the claim dismissed, with costs against the State Industrial Board in the Appellate Division and in this court.
CARDOZO, Ch. J., POUND, CRANE, ANDREWS, LEHMAN and O'BRIEN, JJ., concur; KELLOGG, J., not sitting.
Ordered accordingly.