This is an appeal by the employer-carrier appellants from a decision of the Workmen’s Compensation Board which reversed a prior decision by the referee and made findings dated October 10, 1954, filed in the office of the *737Workmen’s Compensation Board on October 26, 1954, which held that the claimant sustained an accident arising out of and in the course of his employment and awarded compensation to the said claimant.
The claimant worked for the said employer as a cook and dishwasher six days a week and received as compensation therefor $25 a week, together with his room and board which was computed to be $15 a week, making the total compensation $40. Claimant so testified and employer’s report of injuries verified these facts. The working hours of the claimant were from 9 o’clock in the morning until approximately 10 o’clock in the evening, six days a week. The restaurant was closed on Monday and on the night of October 26 (Monday), claimant went to his room provided by his employer on the premises and some time in the early morning of October 27 he got out of bed because as he testified he suffered from a “ charley horse ”, slipped on the floor and sustained personal injuries. There was evidence that the floor was waxed and further evidence of a rug on the floor.
The only question on appeal is whether the accident and the resulting injuries (which are undisputed) arose out of and in the course of claimant’s employment within the purview of subdivision 7 of section 2 of the Workmen’s Compensation Law. The principal point raised by the appellants is that at the time of the injury the claimant was engaged in personal activities and that living on the premises was not a necessary part of his employment.
The evidence before the referee established the facts mentioned above and further that he was not required to work after his regular hours nor to be present in case of emergencies. It was primarily a matter of his own convenience as best expressed by the claimant in response to a question, “ I have to sleep some place.” There was a fair inference from the testimony that he would receive $40 a week if he did not reside on the premises. The hours of employment, 9 o’clock in the morning until 9-10 o’clock in the evening, if anything, would tend to dispute the necessity or obligation to live on premises and confirm the contention of convenience to claimant. Under these circumstances the referee found that he was not entitled to compensation as the accident did not arise out of and in the course of his employment. He was correct unless it can be said that the testimony concerning the wage agreement made the room furnished to the claimant an integral part of his employment. It has been held otherwise in Matter of Groff v. Uzzilla, (1 A D 2d 273) where the claim was dismissed.
In the record on appeal there appears a summons and complaint in which claimant alleges that he rented a room and an answer in which defendant as part of an affirmative defense alleges that the injuries (the ones here in question) were caused to the claimant while in the employ of the defendants; that they arose out of and in the course of his employment; that the defendants provided workmen’s compensation coverage, mentioned the name of the insurance company; that the said claimant was entitled to receive compensation benefits.
The finding of the board follows: No. 6. “Gus Walker instituted an action against John Narolewski. The attorney for Gus Walker, in a brief submitted to the Workmen’s Compensation Board, alleges that John Narolewski interposed an affirmative defense asserting that at the time of the accident, Gus Walker was an employee of the defendant and that his injuries arose out of and in the course of his employment.” The only evidence that these pleadings were before the board is the certification of the secretary.
There is no question that the pleadings in the Supreme Court action, if properly admitted in evidence before the referee or before the board, could be considered as an admission, although not conclusive. The answer was not verified by defendants. (Armstrong v. Duffy, 261 App. Div. 41; Armieri v. St. Joseph’s *738Hosp., 159 Misc. 563, 565; Walsh v. New York Central & Hudson Riv. R. R. Co., 204 N. Y. 58, 66.)
The pleadings in this action, instituted by claimant after a denial of compensation by the referee, are of little probative value in determining tie issue now before this court.
In the Matter of Kopec v. Buffalo Brake Beam-Acme Steel & Malleable Iron Works (304 N. Y. 65,71), the court said: “ This does not mean that the reviewing court will substitute its judgment for the considered judgment of the administrative tribunal. It does mean, however, that it will apply the only available objective test to determine whether the administrative tribunal did i i truth exercise such considered judgment and that it will insist upon ‘ such relevant evidence as a reasonable mind might accept as adequate to support a conclusion".
Taking into consideration the above rule, there is no substantial evidence to sustain the decision of the Workmen’s Compensation Board, unless it be the so-called wage agreement under which claimant received his room. This court has already decided that doctrine in Matter of Groff v. Uzzilla (1 A D 2d 273, supra) and Matter of Medina v. Shore Road Hosp. (4 A D 2d 974).
In the Uzzilla case, the court said at page 275: “ A sharp distinction must be drawn between the eases of employees who are required to live on the employer’s premises, either by virtue of the contract of employment or by reason of the nature of the employment, and cases of employees who are merely permitted to reside on the premises for their own convenience but who are not required to do so. This case clearly falls within the second category (1 Larson on Workmen’s Compensation Law, § 24.40). The decedent was not required to reside on the premises. His residing there did not serve his employer’s convenience. He had fixed hours of employment; he was not on call for the performance of duties at any other time. He was allowed to reside on the premises as a favor, for his own convenience.”
In the same case, Foster, P. J., and Bergan, J., in a dissenting opinion, urged the same position taken by the Workmen’s Compensation Board in this ease but the majority opinion of this court was unanimously affirmed by the Court of Appeals. (See 2 N Y 2d 840.)
The cases cited by the Workmen’s Compensation Board in its decision (Matter of Madigan v. United Hosp., 274 App. Div. 1077 and Matter of Lewis v. River Crest Sanitarium Co., 302 N. Y. 655) are distinguishable, since these eases apparently went upon the fact that the injured or deceased employee was on call regularly or in emergencies or required to sleep on the premises for other reasons. In the instant case, it apparently did not make any difference to the employer where he resided. (See, also, Matter of Congdon v. Klett, 307 N. Y. 218.)
In my opinion the award should be reversed and the claim dismissed.