Matter of Hamilton v. Transp. Workers Union of Greater New York

16 N.Y.2d 696 (1965)

In the Matter of John Hamilton, Respondent, v. Transport Workers Union of Greater New York, Local 100, et al., Appellants. Workmen's Compensation Board, Respondent.

Court of Appeals of the State of New York.

Argued April 14, 1965.

Decided June 10, 1965.

Kenneth K. Floyd and Philip J. Caputo for appellants.

Louis J. Lefkowitz, Attorney-General (Julius Fell, Paxton Blair and Daniel Polansky of counsel), for Workmen's Compensation Board, respondent.

Concur: Chief Judge DESMOND and Judges DYE, FULD, BURKE and BERGAN. Dissent: Judges VAN VOORHIS and SCILEPPI.

Order affirmed, with costs to respondent Workmen's Compensation Board.

Judges VAN VOORHIS and SCILEPPI dissent in the following memorandum: An employee cannot obtain workmen's *698 compensation if he is injured in the course of doing a thing forbidden by his employer (Matter of Hyatt v. United States Rubber Reclaiming Co., 256 N.Y. 571, affg. 230 App. Div. 743; Matter of Boggan v. Abby Finishing Co., 11 A D 2d 591). There is no dispute that this was a wildcat strike, as conclusively determined by the executive board of the union. That was a sufficient basis, under the union's constitution and by-laws, on which to depose him as vice-president of this local. The circumstance that it has been found that he had a mild myocardial infarction as a result of the hearing necessitated by his deliberate violation of the orders of his employer cannot, in our judgment, give him the right to claim that this disability arose out of and in the course of his employment. The hearing was necessitated by his disobedience of the command of his employer, and would not have occurred except therefor. The order appealed from should be reversed and the claim dismissed.