Opinion
May 5, 1943.
Appeal from State Industrial Board.
Claimant was employed by the Kings Park State Hospital as a medical and statistical clerk and had been employed by the hospital for about twenty-two years. He lived on the premises and was subject to the rules and regulations of the institution, which specifically provided that all employees are required "(E) to be ready to perform duty on holidays or at other times to undertake any unusual or special tasks that may be assigned to them." He was provided by his employer with a room and furnished meals and maintenance and was forbidden to leave his work at the institution while on duty without permission from the proper officer or to be absent beyond the stated time for which such permission was granted. On July 4, 1940, at about 5:50 P.M. while dressing after bathing and while sitting in a chair, the claimant leaned forward to pick up some object from the floor whereupon the chair slipped from under him causing him to fall and fracture his left leg. There is ample proof to support the finding that the accidental injury arose out of and in the course of claimant's employment. ( Matter of Culver v. Sevilla Home for Children, 262 App. Div. 620, second appeal 266 App. Div. 705; Matter of Birch v. Budd, 256 App. Div. 53, leave to appeal denied 280 N.Y. 850; Lynch v. City of New York, 242 N.Y. 115. ) "The relation of employer and employee did not cease because the employee was off duty. There was a continuity of employment. Sleeping on the premises in a room provided by the employer in the servants' quarters was an incident of the employment, mutually beneficial to employer and employee, not a temporary suspension of it." ( Matter of Giliotti v. Hoffman Catering Co., 246 N.Y. 279.) That claimant had finished his duties for the day and had retired to his room did not take him out of his employment as he was subject to call at all times, as the Board has found. The finding of the Board was an act of judgment upon a debatable matter of fact and this court is "without power to direct the Board to decide the other way as matter of law." ( Matter of McGrinder v. Sullivan, 290 N.Y. 11; Matter of Daus v. Gunderman Sons, Inc., 283 N.Y. 459.) The award of the Industrial Board should be affirmed. Award affirmed, with costs to the State Industrial Board. All concur.