
    In the Matter of the Claim of Fayette Cleveland, Respondent, against Carlton J. Rice et al., Appellants.
    State Industrial Board, Respondent.
    
      Workmen’s compensation — when employee thrown from sleigh at night, who fell asleep while waiting for a passing vehicle, entitled to compensation for loss of foot through its being frozen.
    
    
      Cleveland v. Rice, 209 App. Div. 257, affirmed.
    (Argued October 3, 1924;
    decided October 21, 1924.)
    Appeal from an order of the Appellate Division of'the Supreme Court in the third judicial department, entered May 29, 1924, affirming an award of the State Industrial Board, made under the Workmen’s Compensation Law. Claimant was employed by a livery-stable keeper at Cuba, N. Y., to convey with a horse and cutter a passenger for a distance of five miles. On the homeward trip claimant was thrown from the cutter and the horse making its escape returned unattended to the stables with the cutter, both uninjured. Claimant wrapped himself in a buffalo robe which had fallen from the cutter and sat down in the snow to wait for a vehicle that might by chance be passing and whereby he might procure his return to Cuba. The time was about one o’clock a. m. He unintentionally fell asleep. Several hours thereafter he was discovered by a resident of a house in the immediate vicinity and was by him conveyed to his destination. Later in the day he discovered that his left foot had been frozen. It was subsequently amputated and for the loss thereof the award in question has been made. The question was whether the loss of the foot was an injury arising out of and in the course of the employment.
    
      Edward P. Mowton for appellant.
    
      Carl Sherman, Attorney-General (E. C. Aiken of counsel), for State' Industrial Board, respondent.
    
      Walter N. Renwick for claimant, respondent.
   Order affirmed, with costs; no opinion.

Concur: Hiscock, Ch. J., Cardozo, Pound, McLaughlin, Crane, Andrews and Lehman, JJ.  