Claim of Orseck v. Firemen's Fund Insurance , 17 A.D.2d 875 ( 1962 )

The insurance carrier appeals from an award of death benefits, contending that decedent was not an employee of Donroger Realty Corp., its insured employer, and that decedent did not sustain an accidental injury arising out of - and during the course of his employment. The question of policy coverage, raised in appellant’s brief, has been withdrawn on oral argument and by letter submitted by consent to this court. Though the record disclosed a dispute as to whether (1) decedent was an employee (manager of a restaurant owned by the employer) or the real owner of the restaurant; and, (2) whether decedent was in the course of his employment when he was killed in an automobile accident, only factual questions were presented, and substantial evidence supports the findings of the board that decedent was an employee and that his death arose out of and in the course of his employment. Award unanimously affirmed, with one bill of costs to the Workmen’s Compensation Board and claimant-respondent. Present—Coon, J. P., Gibson, Herlihy, Reynolds and Taylor, JJ.