
    In the Matter of the Claim of Theodore Gallagher, Respondent, against Mundett Cork Co. et al., Appellants. State Industrial Board, Respondent.
   Appeal from an award of compensation. Award affirmed, with costs to the State Industrial Board. Hill, P. J., Heffernan and Foster, JJ., concur; Brewster and Lawrence, JJ., dissent, in the following memorandum: The State Industrial Board’s reversal of the referee’s decision in disallowing the claim, and its decision validating the claim and making an award of workmen’s compensation were based either wholly upon a presumption that the asserted accident occurred and that the alleged injuries and disability it allegedly produced were compensable under the statute, or upon such presumption and evidence which was incompetent and insufficient in law to Constitute any prima facie case to which the statutory presumption (Workmen’s Compensation Law, § 21) could apply. The mere fact of injury, sustained while at work, such as is here shown, wholly unexplained and unillustrated by some competent evidence of causation by an accident arising out of and in the course of employment is insufficient to the establishment of the claim to compensation, even though the situation in employment is such that the accident here relied upon may be said to have been easily possible or even likely to have occurred. It appears from the record that the decisions and award were based wholly upon the statutory presumption as a support for the finding of the occurrence of the accident relied upon, and that thus the evidence which was received as tending to show it was not adjudged. The decisions appealed from should be reversed on the law and the matter remitted to the Industrial Board for its further consideration and decision on the facts as supported by the evidence, without costs.  