I dissent. This case in principle cannot be distinguished fromMatter of Stillwagon v. Callan Bros. (183 App. Div. 141; affd., on opinion *Page 200 below, 224 N.Y. 714). In that case the deceased and a fellow-employee were each running a motor truck and had gone from the premises of the employer for the purpose of loading their trucks with brick from cars standing on a railroad track. They got into an altercation as to their respective rights to first load, each claiming that right. According to the findings of the commission, "After a short battle of words the two men came to blows and in the melee Henry Stillwagon was struck by his fellow-employee and knocked down" and so injured that he died a short time thereafter. The award made by the commission was reversed by the Appellate Division, that court, as appears from the prevailing opinion, holding that the injury resulted solely because Stillwagon in serving his own purpose willfully sought to injure his co-employee and that the statute specifically excepted such injuries from its operation.
In the instant case Verschleiser, while handling some part of the carcass of a slaughtered animal, believing he had been insulted and imposed upon by some of his co-employees, assaulted and struck one Dudler. Dudler had not imposed upon or insulted the claimant; there is no finding to that effect; there is no suggestion to that effect in the evidence; and if we may look to the opinion of the commission it there states that he was not one of the co-employees who had insulted and imposed upon the claimant. After the claimant had assaulted Dudler the latter repelled the attack by kicking him, thus inflicting the injury for which the recovery was sought.
In Matter of Heitz v. Ruppert (218 N.Y. 148) this court held that the words "arising out of and in the course of employment" are conjunctive and relief can be had under the act only when the accident arose both "out of" and "in the course of" employment; that the injury must be received (a) while the workman is doing the duty he is employed to perform, and also (b) as a natural incident of the work; that it must be one of the risks connected *Page 201 with the employment, flowing therefrom as a natural consequence and directly connected with the work. When the facts here involved are subjected to this test the claimant's case is not within the statute. He was not at the time he was injured engaged in doing the duty he was employed to perform when he stopped his work and made the assault upon Dudler. Nor can it be said that the injury was the natural incident to the work which he was required to perform.
The order of the Appellate Division should be affirmed, with costs against the state industrial commission.
HOGAN, CARDOZO and CRANE, JJ., concur with ELKUS, J., and CHASE, J., concurs in result; HISCOCK, Ch. J., concurs with McLAUGHLIN, J.
Order reversed, etc.