The State Industrial Commission has found that Merlin Smith was sixteen years of age in December, 1917. He had never before worked out. He was a bundle boy in the employ of the H. J. Bartle Manufacturing Corporation, which was engaged in the manufacture of shelter tents for the United States government in the late war. They occupied the second, third and fourth floors of the building having an entrance on Federal street in the city of Troy, N. Y. It adjoined a building with an entrance on River street. The two buildings were under one ownership and constituted the Tibbitts Block. Each had an elevator. These buildings were separated by brick walls. Through these walls were cut fire doors, which afforded easy access from one building to the other. One witness testified that a notice was posted on the wall near the fire door, saying: “ No admittance to this building.” Another witness testified that the notice merely said, “ Fire Door.” The Bartle Corporation employed some 600 hands. Thirty of these were boys. George Tashjian rented an apartment in the River street building. He worked for the Bartle *428Corporation. He was accustomed to go up in the elevator in the River street building, passing through the fire doors fifteen or eighteen times daily. He would get work from the Bartle Corporation, would take it to his apartment and when finished would take it back. He testified that he often found the iron doors open and the swinging gates up. The elevator was contiguous to the fire doors. One of the witnesses testified that she told the boys not to go through into the hallway, that they had no business there. The Smith boy, however, was not included in this warning. Another witness testified that the boys were accustomed to eating their luncheon in the hallway. It also appears that the boys were in the habit of playing with the elevator during the noon hour, and were forbidden to do so by one of the foreladies. It appears that the Bartle Corporation used the River street elevator to take iip raw tent goods, which were unloaded from wagons. There is evidence that these fire doors were open much of the time. The Commission has found that the occupants of the Bartle Building used the elevator in the River street building with impunity One of the witnesses testified that she ..ordered the Smith boy off the elevator the day before he was killed. At about five o’clock on the afternoon of December 12, 1917, the Smith boy was found wedged between the elevator on the fifth floor, and was so badly injured that he died within a short time. A three-wheeled truck of the Bartle Corporation, used to carry tent materials, was found on the elevator beside him. The forelady stated to the president of the Bartle Corporation that she had sent him on an errand to the fifth floor shortly before he was killed. Another employee testified that the last she saw the Smith boy the day he was killed was on the second floor going upstairs, on the corporation stairway, to the third floor with tent material. This was where the work first started. Tashjian testified that he used •this elevator a half hour before the accident and that there was no truck on it then. Fellow-employees, including Smith, used the elevator on the day before the accident unloading goods from it without objection. The elevator was unattended at all times. A forelady testified that if the boy used .the River street elevator he used it contrary to their wishes. Powell, the superintendent of the Bartle Corporation, testified *429that several instances occurred where it was reported to him that the boys were in the habit of getting on the elevator. He seems to have made no order forbidding it. He did not consider it a violation of orders or meriting a rebuke, much less a discharge. The Commission found a quasi acquiescence on the part of the employer in using the elevator. The facts and circumstances presented a question of fact for the Commission. It cannot be said that there is no evidence to support then finding. Upon the evidence it can be inferred that the deceased was engaged in work for the Bartle Corpora^ tion at the time he met with the accident. The fact that a boy sixteen years of age, who had never worked out before, may have been somewhat at fault, if indeed he was at all at fault, does not deprive the claimant of the right of compensation. (Workmen’s Compensation Law, § 10; New York Central Railroad Co. v. White, 243 U. S. 188.) The presumption is that the case comes within the Workmen’s Compensation Law. (§ 21.)
The award should be affirmed.
All concurred, except Woodward, J., dissenting with an opinion in which Cochrane, J., concurred.