(dissenting). A company rule forbade the drinking of intoxicating liquor and an agreement between the employer and the union, of which the employees were members, rendered a violation of that rule basis for “ immediate dismissal.” The rule was, as noted in the court’s opinion (p. 133) “ accepted and obeyed by the employees,” and there is not the slightest evidence either that any employee had ever before taken a drink while on the job, that the employer by word or conduct had ever relaxed the rule, or that it had ever indicated that it would permit drinking on the premises. Under such circumstances, it passes understanding to hold that an employee, who furtively accepts a drink, believing it to be gin, is entitled to compensation because the fellow employee, who offered him the drink, endowed with a cruelly perverted sense of humor, had filled the proffered bottle with poisonous carbon tetrachloride.
Our inquiry here, as in all workmen’s compensation cases, is whether the injury arose out of — as well as in the course of — the employment. In the case before us, there is no suggestion that the drinking was done, even in the remotest or most farfetched sense of the term, in the course of any assigned job, or that it was a permitted incidental diversion which the employer had knowledge of and had impliedly adopted through sufferance or acquiescence. Here, claimant’s act — and it is important to bear in mind that he could never have become the victim of the prank in question until and unless he first performed that act — was just as far removed from the scope of his employment as it would have been had he become ill from drinking bad liquor from a bottle which he himself had brought into the factory, in violation of a company rule, to assuage his thirst with an occasional nip. Surely, no one could possibly claim that the employee was entitled to compensation in such a case merely because the drinking had occurred in the factory during working hours. (See Elliot v. Industrial Accident Comm., 21 Cal. 2d 281, 284.) In the California case, Elliot, having become ill during working hours, took a drink — “as * * * medica*137tian ” — from a bottle which he believed held wine, though in fact it contained carbon tetrachloride. Although the court upheld the ensuing award, it was at pains to caution that the result would have been different if the employee had taken a drink “ of intoxicating liquor for the mere satisfaction of a desire therefor * * * rather than * * * for medicinal purposes ” (21 Cal. 2d, supra, at p. 284).
It does not end our task to declare that the employee was the victim of prank or horseplay, for, if, when the injury occurred, he had stepped out of his working environment, had abandoned his employment, in order to indulge in an extra-employment caper or activity, it would necessarily follow that his injury neither arose out of his employment nor resulted from a risk of that employment. (See, e.g., Matter of Ognibene v. Rochester Mfg. Co., 298 N. Y. 85, 87; Matter of Gaurin v. Bagley & Sewall Co., 298 N. Y. 511; Matter of Industrial Comr. [Siguin] v. McCarthy, 295 N. Y. 443, 446-447; Matter of Leonbruno v. Champlain Silk Mills, 229 N. Y. 470, 472-473.) That being so, all relationship to the prank and horseplay cases is obliterated, any reliance upon them misplaced. In any event, though, whether the claimant’s extra-employment activity is to be deemed an incident of employment depends in large measure upon whether it has been regularized by long indulgence, upon whether there has been “ continuity of practice — conduct which has gained acceptance ”. (Matter of Ognibene v. Rochester Mfg. Co., supra, 298 N. Y. 85, 87; see, also, Matter of McCarthy v. Remington Rand, Inc., 300 N. Y. 715; Matter of Gaurin v. Bagley & Sewall Co., supra, 298 N. Y. 511; Matter of Industrial Comr. [Siguin] v. McCarthy, supra, 295 N. Y. 443, 446-447; Matter of Leonbruno v. Champlain Silk Mills, supra, 229 N. Y. 470, 472-473.) Thus, in affirming an award for compensation in the McCarthy case (supra, 295 N. Y. 443), we stressed the “ long-continuing custom and practice ” of the conduct there involved and the “ continued series of related and similar incidents participated in by all the employees ” (p. 447), and, in the Remington Rand case (supra, 300 N. Y. 715), where the employee took a drink of carbon tetrachloride at a New Year’s party held in the factory, under the belief, also induced by a practical joker, that it was whiskey, we upheld the award solely upon the ground that the *138evidence was ample to sustain the finding that the employer, knowing that the drinking of intoxicating liquor occurred at such parties, sanctioned the practice and, by that token, transformed such drinking and its attendant consequences into risks of the employment.
We have seen that here the case was entirely different. The record establishes that there never before had been any drinking in the factory — this being “ a single isolated incident which originated solely and entirely in the injured employee’s own act ” (Matter of Industrial Comr. [Siguin] v. McCarthy, supra, 295 N. Y. 443, 447) — and the employer had never permitted, or even intimated that he would have permitted, such conduct. There is no escape from the conclusion that, when claimant was injured, he had deliberately abandoned his employment in order to indulge in an activity entirely unrelated to his work — and the employer’s rule against drinking forcefully points up and accentuates the fact of such abandonment.
I am not suggesting that the violation of every company rule disqualifies an employee from compensation for resulting injuries. Some rules, such as those prescribing work routines or protective devices, are designed expressly for the individual employee’s personal protection, and it would frustrate the very purpose and aim of the Workmen’s Compensation Law to hold that a violation of that type of rule removed the employee from his employment. (See, e.g., Matter of Corrina v. De Barbieri, 247 N. Y. 357; Capital Tr. Co. v. Hoage, 84 F. 2d 235; Oklahoma Ry. Co. v. Cannon, 198 Okla. 65.) Not so, however, where the rule, such as the one before us, is obviously designed to protect not only the violator but his fellow employees whose safety is dependent upon his careful and sober operation of machinery or other equipment. It impresses me as principle turned topsy-turvy to sanction payment' of compensation to an employee who performs — or believes that he is performing — an act that calls for summary dismissal.
The order appealed from should be reversed and the claim dismissed.
Lotjghban, Ch. J., Conway and Fboessbl, JJ., concur with Dye, J.; Fuld, J., dissents in opinion in which Lewis and Desmond, JJ., concur.
Order affirmed.