
    In the Matter of the Claim of Harry L. Markell, Respondent, against Daniel Green Felt Shoe Company et al., Appellants.
    (Argued April 19, 1917;
    decided May 8, 1917.)
    
      Matter of Markell v. Green Felt Shoe Co., 175 App. Div. 958, affirmed.
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered December 1, 1916, affirming an award of the state industrial commission made under the Workmen’s Compensation Act. Claimant while employed as foreman for the defendant felt company and in the discharge of his duties received injuries resulting in the loss of an eye through the act of an employee of a machinery company who had been repairing machines in defendant’s plant and who, approaching' claimant in a dark room, placed his arms about claimant’s neck and drew his head forward onto a lead pencil in his pocket in such manner that the lead penetrated the eyeball. Appellants contended that the injury did not arise out of the employment for the reasons that it was not received as a natural incident of the work and was not due to a risk connected with the employment; that it was due to a risk to which the claimant was exposed in common with any other person; that the act causing the injury was in effect skylarking or horse-play, and was outside the scope of employment of the machine company’s employee.
    
      Jeremiah F. Connor for appellants.
    
      Egburt E. Woodbury, Attorney-General (E. C- Aiken of counsel), for state industrial commission.
    
      George W. Ward for respondent.
   Order affirmed, with costs; no opinion;

Concur: Hiscock, Ch..J., Chase, Hogan, Cardozo, Pound, McLaughlin and Andrews, JJ.  