This is an appeal from an award of the State Industrial Board, made in favor of Rose Briskin, claimant, February 15, 1922, on a death claim.
Benjamin Briskin was a partner of Morris Hyman in the undertaking business at 81 Cook street in Brooklyn, and was assistant manager of a garage of said Hyman at 131 Cook street, Brooklyn. Briskin lived at 627 East One Hundred and Thirty-seventh street, The Bronx, New York. He had been employed .upwards of three weeks as such assistant when the garage took fire and Briskin was so burned in the fire that he died May 21, 1921.
He took the place of the manager, Harris Hyman, the son of the owner, who was obliged to rest on account of his health and went away May seventeenth. Briskin’s duties included seeing that the cars were properly placed, the oil supply kept up, that nothing was missing from the place. There were in the garage fifty-five cars, quite some loose supplies, rubber and gasoline. He had no authority to pay bills.
The fire took place about one-thirty in the morning and while Briskin was lying on the sidewalk he was discovered by White, a policeman, who testified: “ I asked him what right he had in the garage—was he working there or what was he doing there, and he said he came to relieve another man, there was a negro in the garage, and I said ‘ What time did you relieve this negro? ’ and he said '6 o’clock ’ and I asked him why he came so early and he said he was over that way and thought he would come in and sleep there * * * he would rather sleep there than go * * * home again, a matter of three hours.”
One of the objections of the appellants to this award is that the death did not arise out of and in the course of his employment.
The deceased was the person in charge of the garage with the duty of having some one there to guard the property and attend *280to the business. One of his duties was to relieve the nightman. In the performance of that duty it seems to me he had the right to be upon the premises and to occupy his time as he saw fit to accomplish the purpose of his employment. He had the right to sleep there as a part of the responsibility of management. His duty of superintendence was confined to no hours. He was the boss to look after and direct the nightman and the boy.
It seems to me that the cases cited upon the appellants’ brief tend rather to the support of the award than its overthrow. Take Matter of Daly v. Bates & Roberts (224 N. Y. 126). Judge Hogan of the Court of Appeals says: “ The injury must be received * * * while the workman is doing the duty he is employed to perform.” Measured by that test, Briskin met his death “ in the course of his employment.” He was on duty as superintendent both in guarding the property from being stolen by thieves or from being used or suffered to be used by the employees and while waiting to relieve the nightman.
The case of Matter of Gifford v. Patterson, Inc. (222 N. Y. 4), was one where the duties were those of a watchman to go around the building for that purpose. He went to sleep and slid down a chute and was killed. This was the doing of an act not incident to his employment “ and not authorized or induced by his employer in connection with his employment * * * within the meaning of subdivision 7, section 3 of the Workmen’s Compensation Law.”
In the case at bar the employment comprehended management and the relief of workmen and thus deceased was authorized in and induced to the act of staying and sleeping in the garage and the injury arose from the hazard of being so occupied in such an inflammable place.
Nor is the reasoning of Judge Collin in Matter of Kowalek v. New York Consol. R. R. Co. (229 N. Y. 494) conclusive upon the respondent, when he says: “ The statute is not applicable to an injury which arises through a danger or hazard dissociated from or not inherent in the nature of the employment as its source and to which the employee would have been equally exposed apart from the employment. * * * An injury does not arise out of the employment unless the hazard causing it is, within rational apprehension, an attribute of or peculiar to the specific duties of the employment.”
It must be apparent that hazard in carrying on a garage where there are gasoline and fifty-five automobiles is “ within rational apprehension,” for here the colored night watchman was forced to jump through a window to save himself from the conflagration.
The arguments of the appellants are based upon the claim that *281Briskin was asleep there at one-thirty that night. Nobody saw Briskin come in. The evidence is that Holzendorf, the nightman, after he got out “ saw a man on fire * * * saw him getting up from the office door.” The proof, therefore, rather is that the man was awake than asleep at the time of the fire. The testimony of the policeman does not militate against the inference that Briskin was awake for it deals only with why he was at the garage.
The policeman does not represent him as saying he was asleep. He may have just come in. At any rate he is entitled to the presumption that his claim falls within the provisions of subdivision 1 of section 21 of the Workmen’s Compensation Law. That presumption is rather strengthened than weakened by the evidence of the policeman and Holzendorf.
We think there is evidence to support the finding that his wages were to be forty dollars per week and that, therefore, the finding is final.
The award should be affirmed, with costs.
Award reversed and claim dismissed, with costs against the State Industrial Board.