MATTER OF BUCKLEY v. GALLAGHER BROS. SAND G. CORP., 300 N.Y. 447 (1950)

92 N.E.2d 38

In the Matter of the Claim of MARGARET M. BUCKLEY, Respondent, against GALLAGHER BROS. SAND GRAVEL CORP. et al., Appellants. WORKMEN’S COMPENSATION BOARD, Respondent.

Court of Appeals of the State of New York.Argued March 1, 1950
Decided April 13, 1950

Appeal from the Supreme Court, Appellate Division, Third Department.

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Charles P. Barre for appellants.

Nathaniel L. Goldstein, Attorney-General (Gilbert M. Landy, Wendell P. Brown and Roy Wiedersum of counsel), for Workmen’s Compensation Board, respondent.

Per Curiam.

There was no evidence that claimant became disabled as the result of her duties as a telephone operator. The tuberculosis contracted by her while serving as bookkeeper was not an occupational disease within the meaning of subdivision 2 of section 3 of article 1 of the Workmen’s Compensation Law. The disease resulted not as an incident to claimant’s occupation but from the fact that she worked alongside a tubercular coemployee who was also a bookkeeper. It was the coemployee and not the occupation which caused the disease. (Matter of Harman v Republic Aviation Corp., 298 N.Y. 285; Matter of Champion v Gurley, 299 N.Y. 406.)

The order of the Appellate Division and the award of the Workmen’s Compensation Board should be reversed, with costs

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in this court and in the Appellate Division, and the claim dismissed.

LOUGHRAN, Ch. J., LEWIS, CONWAY, DESMOND, DYE, FULD and FROESSEL, JJ., concur.

Ordered accordingly.

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