
    In the Matter of the Claim of The Commissioner of Taxation and Finance on account of the death of Samuel Wonson, Respondents, against Brookshire Construction Co., Inc., and Another, Appellants. State Industrial Board, Respondent.
   Appeal from an award by reason of the death of deceased employee. Deceased employee was a watchman of premises containing five houses on Clayton avenue, Floral Park, L. I. He was on twenty-four-hour duty, and there was a shanty across the street where he was to sleep. He was to walk through the place and take care of these five houses. He could go through at any time of the night, but was not required to; “ he was just supposed to be around there.” One of the houses was a sample house containing some furniture; in the living room there was a couch in the corner. A fire occurred about five o’clock in the morning of the 20th of February, 1936, in this living room. The couch was destroyed; around the couch the wall and the floor were partly burned and the charred body of deceased was on the floor. At the hearing the referee commenting on this evidence, said: “ They found the man on the couch, the couch burns up, nothing else bums up, doesn’t require a very vivid imagination to arrive at the conclusion the fire started in the couch.” Award reversed, and claim dismissed, with costs against the State Industrial Board, on the authority of Matter of Pisko v. Mintz (262 N. Y. 176). Hill, P. J., Rhodes, McNamee and Crapser, JJ., concur; Heffernan, J., dissents, and votes to affirm, on the ground that the facts in this case distinguish it from the case cited.  