The findings as above set forth suggest two theories on which it is sought to sustain this award, first, an injury arising in the course of the employment consisting of an abrasion of the nose caused by a wire on a bale of hay through which abrasion the anthrax infection entered the system of the deceased, and second, an injury not arising in the course of the employment consisting of a boil in his nose through an incision of which the disease infection entered.
As to the first theory there is no competent evidence that the deceased received an abrasion from a wire or otherwise. Two witnesses testified that he so informed them and the finding to that effect rests entirely on this hearsay testimony. His wife disclaims that he so told her and no witness testifies to seeing a scratch or any indication of such an injury.
*8It is now well established that a claimant must prove an accident arising out of and in the course of the employment and that he cannot rely on the presumption of section 21 of the Workmen’s Compensation Law as a substitute for such proof. (Matter of Collins v. Brooklyn Union Gas Co., 171 App. Div. 381; Matter of Eldridge v. Endicott, Johnson & Co., 228 N. Y. 21.)
It is equally well settled that in making such proof a claimant must produce some legal evidence and cannot rely exclusively on hearsay testimony. (Matter of Belcher v. Carthage Machine Co., 224 N. Y. 326; Matter of Hansen v. Turner Construction Co., Id. 331; Matter of Carroll v. Knickerbocker Ice Co., 218 id. 435.) The claim of an accident causing an abrasion must, therefore, fail.
As to the second theory that an anthrax germ attacked the deceased through an incision in the boil there is no evidence that he contracted the disease in the course of his employment. It does not appear that any of the animals with which he came in contact had anthrax. It does not even appear that about the time when he contracted the disease he came in contact with any diseased animal except a lame horse nor with any other kind of animal either sick or well except horses. It does not appear that the disease is peculiar to horses. No evidence was given as to the nature of anthrax nor as to the circumstances or conditions under which it attacks mankind. Because the deceased died of anthrax and because his employment was in connection with animals the Commission has concluded that a causal relation between his employment and death existed. Such a conclusion is not justified in the absence of evidence estabfishing a causal relation. The case in this particular is very similar to Matter of Eldridge v. Endicott, Johnson & Co. (228 N. Y. 21), and is controlled by the decision in that case.
On either theory of the case there is a failure of proof, and the award must, therefore, be reversed and the matter remitted to the Commission.
All concur, except John M. Kellogg, P. J., dissenting, with an opinion.