Opinion
Argued October 1, 1969
Decided October 9, 1969
Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department.
Joseph F. Manes and Herbert Lasky for appellants.
Louis J. Lefkowitz, Attorney-General ( Julius Fell, Ruth Kessler Toch and Daniel Polansky of counsel), for Workmen's Compensation Board, respondent.
No appearance for claimant-respondent.
MEMORANDUM. The order of the Appellate Division should be reversed, without costs and the claim before the Workmen's Compensation Board dismissed. The Workmen's Compensation Board found that "the prolonged argument and emotional strain participated in by the decedent prior to his collapse on July 24, 1964 involved greater stress and exertion than the ordinary wear and tear of life." On this record such finding is incorrect, as a matter of law. The altercation did not involve stresses or strains greater than ordinary wear and tear of life ( Matter of Zygler v. Tenzer Coat Co., 19 A.D.2d 660, affd. 15 N.Y.2d 562; Matter of Cramer v. Barney's Clothing Store, 15 A.D.2d 329, affd. 13 N.Y.2d 711; Matter of Coleman v. Guide-Kalkhoff-Burr, 12 A.D.2d 554, affd. 10 N.Y.2d 857; Matter of Santacroce v. 40 W. 20th St., 9 A.D.2d 985, affd. 10 N.Y.2d 855; see, also, Matter of Nicotera v. Dorn's Transp., 30 A.D.2d 735, mot. for lv. to app. den. 25 N.Y.2d 738).
Chief Judge FULD and Judges SCILEPPI, BREITEL and JASEN concur in a memorandum; Judges BURKE and BERGAN dissent and vote to affirm on the prevailing opinion at the Appellate Division; Judge GIBSON taking no part.
Order reversed, etc.