Opinion
November 16, 1943.
The claimant was employed as a nurse. Her hours of employment were from 7:00 A.M. to 7:00 P.M. each day. She was entitled to a two hours' rest period during her lunch period. The claimant could do anything she chose during this period. She was required to leave her telephone number where she could be reached during the time she was off. She had worked about six months and she had never been recalled during her rest period. She had her own automobile and drove from her apartment to the hospital. On the day of the accident the claimant had soiled her uniform by spilling ink on it, and on her rest period as usual she had gone to her apartment to spend her time off. On her way back, driving her own automobile she collided with another automobile and received the injuries for which the award has been made. She was employed by the Parkchester General Hospital. The question at issue is whether the accident arose out of and in the course of claimant's employment so as to come within the terms of the Workmen's Compensation Law. The accident did not arise out of and in the course of her employment. Award reversed and claim dismissed, with costs against the State Industrial Board on the authority of Matter of Weir v. Bd. of Education of School Dist. No. 10 ( 282 N.Y. 709). Crapser, Bliss and Schenck, JJ., concur; Hill, P.J., and Heffernan, J., dissent and vote to affirm on the authority of Matter of Bergman v. Buffalo Dry Dock Co. ( 269 N.Y. 150); Matter of Clapham v. David ( 232 App. Div. 458).