(dissenting). In my view, the injury to claimant’s eye did not arise out of and in the course of his employment. The employers are two brothers operating a small automobile supply and machine shop. Claimant was employed as a handyman. On the day in question, while he was bending in a vise a spring clip for the glove compartment of his automobile, the spring slipped injuring his left eye. He was working upon his own automobile, not used in the service of his employers.
Although this accident happened at five o’clock and he was required to remain upon his employers’ premises until the shop closed at 5:30 in the afternoon, and he was permitted to work on his own car when there was nothing else for him to do, it seems to me that while he was engaged in promoting a personal object of his own which was unrelated to his employers’ busi*19ness, he was not acting in the course of his employment. In numerous decisions it has been held that an injury is not compensable if it occurs while an employee is pursuing some personal object not related to his work (Matter of Ognibene v. Rochester Mfg. Co., 298 N. Y. 85; Matter of Smith v. Parkchester Gen. Hosp., 293 N. Y. 824; Matter of Lovett v. Buck, 285 N. Y. 526; Matter of Weir v. Board of Educ., 282 N. Y. 709; Matter of Clark v. Voorhees, 231 N. Y. 14; Matter of Di Salvio v. Menihan Co., 225 N. Y. 123; Matter of Shultz v. Nation Associates, 281 App. Div. 915).
Here the employee was not idling to pass the time because the conditions of Ms employment required him merely to be present either at the shop or in some distant place (Matter of Motto v. Cosmopolitan Tourist Co., 278 App. Div. 597; Matter of Polski v. U. S. O. Camp Shows, 272 App. Div. 1094). The injury resulted directly from a hazardous operation wMch claimant undertook on Ms own account in repairing his own automobile. If the spring flying from the vise had Mt someone else in the eye, the employers could not have been held liable to a tMrd person in negligence upon any theory that claimant was then acting in their service (Fluegel v. Coudert, 244 N. Y. 393). Where an employee in furtherance of some object of his own perpetrates an assault upon a third person, it is held that he has departed from the scope of Ms employment, although the occurrence happens while he is on his employer’s time (Sauter v. New York Tribune, 305 N. Y. 442).
It seems to me to be immaterial that claimant was using the employers’ facilities and that the spring which he was bending had been given to Mm by the employers.
The situation may be different where an employee becomes the victim of horseplay by fellow employees (Matter of Industrial Comr. [Siguin] v. McCarthy, 295 N. Y. 443). The principle upon which the horseplay cases have been held to be compensable is that an employer, cognizant of the tendency of persons brought together by employment to play pranks upon one another, is responsible for resulting injury done to the victim as a natural incident of the work. Those cases have no application to the present situation where the injury has resulted from a purposeful act of the claimant Mmself to accomplish *20something which is admitted to have been solely for his own advantage. This accident no more arose out of and in the course of his employment than would have been the case if the same incident had happened while he was repairing his automobile in his own back yard (Matter of Heitz v. Ruppert, 218 N. Y. 148, 151). The test prescribed by the leading case just cited is that the injury must be received while the workman is doing the duty he was required to perform as a natural incident of the work. The circumstance that his employers were aware of what he was doing without objecting, does not bring the accident within the coverage of the statute.
The cases holding that there is liability for compensation where injury occurs during organized games or other recreational activity planned by the employer as a fringe benefit to employees, bear no analogy to the present situation (Matter of Tedesco v. General Elec. Co., 305 N. Y. 544; Matter of Wilson v. General Motors Corp., 298 N. Y. 468). The employers did not organize this activity for claimant; he simply chose to work on his own automobile when there was no work to do for them. The mere fact that it occurred while he was on their time does not make it an activity that he was employed to perform or a natural incident of his regular work.
The order appealed from should be reversed and the claim dismissed.
Lewis, Oh. J., Desmond, Dye, Fuld and Froessel, JJ., concur with Conway, J.; Van Yoorhis, J., dissents in opinion.
Order affirmed.