
    Before State Workmen’s Compensation Commission, Respondent. In the Matter of the Claim of Frank Okrzesz, Claimant, Respondent, for Compensation to Himself under Workmen’s Compensation Law, v. Lehigh Valley Railroad Company, Employer and Self-Insurer, Appellant.
    Third Department,
    November 10, 1915.
    Workmen’s Compensation Law — repair of car used for interstate traffic — award under State law.
    An employee of the Lehigh Valley railroad, an interstate railroad, who was injured while engaged in repairing a car at the shops of said company situated at Buffalo, is entitled to an award under the State Workmen’s Compensation Law, although the car which he was repairing was, at times, used in interstate traffic.
    Appeal by the defendant, Lehigh Valley Bailroad Company, from an award of the Workmen’s Compensation Commission, entered in the office of said Commission on the 11th day of February, 1915.
    
      Benjamin F. La Rue [E. H. Boles of counsel], for the appellant.
    
      Jeremiah F. Connor, counsel to the Workmen’s Compensation Commission.
    
      Egburt E. Woodbury, Attorney-General, for the respondent.
   Woodward, J.:

The Lehigh Valley Bailroad Company, a corporation operating an interstate commerce railroad, appeals from an award of the Workmen’s Compensation Commission. The only question here presented is whether the claimant, who was employed in the car shops of the railroad company in repairing car No. 61058, which car was used in the general traffic of the railroad, both intrastate and interstate, is within the purview of the laws of the State. The railroad company urges that he comes within the Federal Employers’ Liability Act (35 U. S. Stat. at Large, 65, chap. 149, as amd. by 36 id. 291, chap. 143) covering injuries to employees engaged in interstate commerce, and is, therefore, excluded from the compensation provided by the laws of this State. We think the contention is not sound.

Section 21 of the Workmen’s Compensation Law (Consol. Laws, chap. 67Laws of 1914, chap. 41) provides that “ In any proceeding for the enforcement of a claim for compensation under this chapter, it shall be presumed in the absence of substantial evidence to the contrary 1. That the claim comes within the provisions of this chapter,” etc. There is no evidence here that this claim does not come within the provisions of the law, unless it be the affidavit of an employee of the railroad company that this particular car had been used in domestic and interstate commerce prior and subsequent to this accident. The car at the time of the accident was in the shop of the Lehigh Valley Railroad Company at East Buffalo for repairs. It was for the time withdrawn from transportation duty and was placed in the machine shop for repairs. This machine shop is maintained and operated within the State of New York. If this shop were used in the construction of new cars it would hardly be suggested that they were engaged in interstate commerce in such a manner as to take employees out of the protection of the laws of this State, and no reason suggests itself why this old car, undergoing repairs, was in any sense a part of interstate commerce, in the sense necessary to bring it within the various acts of the United States governing such commerce. We think the award was within the purview of the statute and should be affirmed.

Award unanimously affirmed; Kellogg, J., not sitting.  