(dissenting):
I cannot concur with the view of the majority of the court that the plaintiff has a right to compensation for her injuries under the provisions of the Workmen’s Compensation Law, and, therefore, this judgment must be reversed. The plaintiff was employed in the principal office of the defendant at No. *3871 Madison avenue in the city of New York, a building which it owned and operated. This building was largely occupied by the company for its offices; portions of it, however, were leased to tenants. It was conceded that the defendant had complied with the provisions of the Workmen’s Compensation Law, and had secured compensation to its employees as prescribed therein, and that its employees, including this plaintiff, were subject to the provisions of that statute. The sole question, therefore, to be determined is whether the plaintiff’s injuries arose out of and in the course of her employment. (See § 10; Id. § 3, subd. 7, as amd. by Laws of 1917, chap. 705.) The facts of the case in regard to the injury are as follows:
The plaintiff was employed on the eleventh floor of the building. Her working hours were from nine o’clock in the morning until four-thirty in the afternoon with thirty-five minutes for luncheon, rest and recreation. The plaintiff’s time for luncheon was from eleven-forty-five until twelve-twenty. The defendant served lunch to its employees on the, twelfth floor. A stairway led from the eleventh floor, where plaintiff was employed, to the twelfth floor. On January 23, 1920, the plaintiff, having finished her luncheon, came down the stairway from the lunch room on the twelfth floor at a little after twelve o’clock to the room in which she worked, got some money from her desk, and took one of the regular passenger elevators to the ground floor, for the purpose of purchasing a gift for her sister at a nearby store. When the elevator came to a stop at the ground floor and the doors were opened by the operator the plaintiff was the first to leave the car, and as she was in the act of stepping out, the elevator suddenly started upward, the plaintiff’s head came into contact with the top of the door frame, and she fell out and down to the bottom of the shaft, suffering severe injuries.
“ The words ‘ arising out of and in the course of the employment ’ have a clear and definite meaning and an award can be made under the statute only when the injuries arise out of both.” (Matter of Clark v. Voorhees, 231 N. Y. 14; Matter of Schultz v. Champion Welding & Mfg. Co., 230 id. 309.)
“ The words ‘ arising out of and in the course of employment ’ are conjunctive, and relief can be had under the act only *388when the accident arose both ' out of ’ and ' in the course of ’ employment. The injury must be received (1) while the workman is doing the duty he is employed to perform, and also (2) as a natural incident of the work. It must be one of the risks connected with the employment, flowing therefrom as a natural consequence and directly connected with the work.” (Matter of Heitz v. Ruppert, 218 N. Y. 148, 151; Matter of Daly v. Bates & Roberts, 224 id. 126.)
The Supreme Court of Massachusetts has said in relation to the same phraseology contained in the Workmen’s Compensation Act of that State: “ The relief is so new that the tendency may be to inquire only as to the employment and the injury and to assume that these two factors constitute ground for compensation. But the essential connecting link of direct causal connection between the personal injury and the employment must be established before the. act becomes operative. The personal injury must be the result of the employment and flow, from ■ it as the inducing proximate cause * * * The direct connection between the personal injury as a result and the employment as its proximate cg/use must be proved by facts before the right to compensation springs into being.” (Madden’s Case, 222 Mass. 487, 495.)
When the plaintiff returned from lunch, took her money, left the room where she was employed, and started for the store, she was not doing anything she was employed to do, nor was it anything incident to or connected with the employment. She was engaged in her own personal affairs, and upon business of her own. The fact that the elevator she used may have been one that she would have used in coming to or returning home from her work, does not render the employer liable under the act, for she was not using it for that purpose, nor for the purpose of. going from the building to perform some work incident to, and as a part of, her duty as an employee. The fact that injury happened in the employer’s building, in a portion of which the plaintiff worked, does not bring her within the act unless she was at the time engaged in her employment and the injury arose out of the employment.
In Urban v. Topping Brothers (184 App. Div. 633) the employee had quit work at five-thirty-five, his quitting time being five-thirty, and had gone to the door; but remem*389bering that some of his companions with whom he usually went home were still in the building he turned back and thrust his head into the shaft of the freight elevator, "and called down to them, and was crushed by a descending car. The court held that the injury did not arise out of his employment. In Pierson v. Interborough Rapid Transit Co. (184 App. Div. 678; affd., 227 N. Y. 666) a guard in the employ of the defendant was injured during a two-hour period off duty, by the collision of the train in which he was riding with another of the defendant’s trains, while he was on his way from a terminal, where he had just finished his tour of duty, to his dentist’s. This court held that the injury did not' arise out of or in the course of his employment. In Matter of Kowalek v. New York Consolidated R. R. Co. (229 N. Y. 489) an employee who had finished his work for the day went out upon the station platform with the intention of taking a passenger train to his home, the company permitting its employees to do so without charge; and he was killed. The Court of Appeals held that the injury did not arise out of or in the course of his employment. The decedent did not stand on the platform as an employee but as a prospective passenger. “ The danger to which he was there exposed existed as to all persons who exercised the common privilege of going there for the purpose of being transported. It was neither connected with nor increased by the hazards of the actual duties of the employment.” (p. 493.)
In Matter of DiSalvio v. Menihan Co. (225 N. Y. 123) the employee, who was working in a factory, had finished the work assigned him and while waiting for other work to arrive walked across the room to say good-bye to another workman who had been drafted, and was about to leave to join the army. While talking to his friend he was injured. The Court of Appeals held that the case was not one for compensation, saying: “ This act did not enable him either directly or indirectly, in any tangible sense, the better to perform his work, discharge his duties or carry forward the interests of his employer. It was not a natural incident to the work for which he was hired. * * • * It was simply and solely the expression of a private desire and the consummation of a personal purpose.”
*390The case of Ross v. John Hancock Mutual Life Ins. Co. (222 Mass. 560; cited with approval, 229 N. Y. 494) is quite similar to the instant case. An employee of the defendant, working on the tenth floor, during the lunch period entered the elevator for the purpose of delivering a Christmas present to another employee on the ninth floor. While she was in the act of getting off, the elevator started and she was fatally injured. The elevator was owned and operated by the defendant and the building was occupied also by others as tenants. The court held the action maintainable, saying: “ Plainly the fact that the plaintiff’s intestate was in the general employ of the defendant is not decisive. In this building, occupied by many tenants, she might ride in the elevator in pursuance of her work for the defendant, or she might ride entirely on her own business as a passenger * * *. Outside of her 'working hours, however, she had the same right to use the elevator as any of the general public. During the luncheon period her time was her own.” (p. 561.)
From these decisions it follows, in my opinion, that we should hold that at the time that the injury happened to this plaintiff she was on the elevator, not as an employee of the defendant, but as one having the same rights as the general' public, and the dangers to which she was thus exposed did not arise out of nor were they incidental to her employment, but were such as were common to all passengers on elevators; that she was not engaged at the time of the injury in the work of her employment, and the injury did not arise out of her employment. Therefore, she was not within the Workmen’s Compensation Law and could maintain the action.
The verdict of the jury as to the defendant’s negligence and the plaintiff’s freedom from contributory negligence was fully warranted.
Judgment and order reversed, with costs, and complaint dismissed, with costs.