The claimant's employment was confined to the operation of a gas filling station at a regular weekly wage. The permissive operation of a service station for his own profit was not part of that employment, even though the permission may have been granted because the operation of a service station would be convenient, and even though such permission may have *Page 364 induced the claimant to accept the employment. (Cf. Huscroft v.Bennett, 7 B.W.C.C. 41.) The courts below have relied upon the decision of this court in Matter of Johnson v. RooseveltMemorial Assn. (259 N.Y. 641). There the claimant was injured while engaged for the benefit of the employer in the work which he was employed to do, though as remuneration for his work he was entitled to its direct profits. Here the work lay outside the scope of the employment and was performed voluntarily for the benefit of the claimant and not of the employer.
The order of the Appellate Division and the award of the State Industrial Board should be reversed and the claim dismissed, with costs in all courts against the State Industrial Board.
CRANE, Ch. J., LEHMAN, O'BRIEN, HUBBS, CROUCH, LOUGHRAN and FINCH, JJ., concur.
Ordered accordingly. *Page 365