The business of the employer was to furnish burglar and watchman service. The duty of the deceased employee was to patrol the streets at night guarding and protecting stores' in the course of his employment. A burglary had occurred in a distant part of the city entirely unrelated to the work of the deceased. A police officer was in pursuit of the fleeing burglars. He shot at one of them but thé bullet missed its aim and accidentally struck and killed Heidemann, the employee. The bullet which caused his death was not intended for him but for the fleeing burglars. If it had struck the *403motorman of a passing street car or any other employee engaged in his usual employment the same argument could be made as is here made that the accident arose out of the employment in which the injured employee happened to be engaged. I think there is no causal relation between the accident and the employment. The case of Matter of Redner v. Faber & Son (223 N. Y. 379) contains nothing favorable to this claim for the reason that this accident did not occur because of an ordinary risk incidental to a street nor do the usual perils of a street involve exposure to flying bullets. This bullet might have reached its victim if he had not been on the street. If the deceased had been shot under the same circumstances while on the premises of his employer the case would be no different. The work in which the deceased was engaged bore no relation to the accident. The stray bullet might have caused the death of any other person who happened to be in its course. The work which the deceased was doing did not induce or cause the firing of the fatal shot. That act was entirely independent of the employment and unrelated thereto. The accident, therefore, did not arise out of the employment. (Workmen’s Compensation Law, § 10.)
The award should be reversed and the claim dismissed.
All concur, except John M. Kellogg, P. J., dissenting, with a memorandum, in which Kiley, J., concurs.