The defendant was engaged in a hazardous employment and the deceased employee was a watchman at its plant. We held in Sorge v. Aldebaran Co. (171 App. Div. 959; 155 N. Y. Supp. 1142; affd., 218 1ST. Y. 636) that a night watchman was within the act. In Fogarty v. National Biscuit Co. (175 App. Div. 729), we held, by a divided court, that a night watchman who was going his rounds through the plant at a time when the plant was not in operation, was not within the protection of the act. We stand, therefore, as holding that a watchman is within the act unless it appears that the plant was shut down at the time of the injury. There is nothing in the findings or evidence showing whether or not the plant was shut down. The claim is presumed to come within the act in the absence of substantial evidence to the contrary. There being no evidence to the contrary, we conclude that the plant was not shut down and that the claim falls within the principle of the Sorge case.
The cases cited in the prevailing opinion are not to the contrary. In the Newman case the employer’s business was not hazardous. The employee was delivering meat during the day time with a wagon; after having put up his horse, while doing an errand, he carried a piece of meat to a customer in the evening, and while doing so was injured. It was held that he was not engaged in the hazardous employment of operating a vehicle at the time of the injury.
In the Bargey case the employer was engaged in a hazardous business, but Bargey, a carpenter, was not an employee in that business. He was called to the factory to make some necessary repairs, and it was held that he was not engaged in the macaroni business.
In the Brown case the claimant was a process server in connec*87tion with the law department of the railroad company, and it was held that he was not in the employment of operating a railroad.
In the Mandel case the employer was a manufacturer of leather and other fabric novelties in New York city, a hazardous employment, and the claimant, a salesman, was injured in a public husmear White Plains. It was held that he was not engaged in a hazardous employment at the time of the injury.
Here a watchman is a necessary employee in carrying on the defendant’s work, and he met his death at the plant while performing the work there for which he was employed. By subdivision 4 of section 3 of the Workmen’s Compensation Law, the word “ employee ” means a person engaged in a hazardous employment or in the service of an employer, whose principal business is that of carrying on or conducting such an employment. I favor an affirmance of the award.
Howard, J., concurred.
Award reversed and claim dismissed.