Claim of Concilla v. Scrufari Construction Co. , 275 A.D.2d 884 ( 1949 )

Foster, P. J., HefEernan, Brewster and Bergan, JJ., concur; Deyo, J., dissents in the following memorandum: Deceased, a laborer, was last seen alive working at or near the edge of an eight-foot trench. His body was found at the bottom of the trench. No one witnessed the accident. The cause of death was given as acute cardiac failure, chronic myocarditis and arteriosclerosis. The injuries sustained from the fall were inconsequential. There is no substantial evidence to sustain the finding that death was the result of accidental injuries arising out of and in the course of employment; on the contrary there is positive medical proof that death occurred prior to the fall. In view of such evidence the presumption embodied in section 21 of the Workmen’s Compensation Law does not apply and the decision and award should be reversed.