
    In the Matter of the Claim of Dorothy Barth, Respondent, v. Sal Cassar, Doing Business as Pronto Car Service, Appellant. Workmen’s Compensation Board, Respondent.
   Appeals from a decision of the Workmen’s Compensation Board, filed October 7, 1970, and from a decision of the Referee, filed March 15, 1971. The board found that claimant’s deceased performed work as a cab driver driving a cab owned by appellant for which he was paid on a commission basis, that he stayed in the office for appellant receiving calls by customers and complying with their requests for taxi service, that the work was performed under the direction and control of appellant and that an employer-employee relationship existed. (Matter of Worth v. Hubbell Lbr. Corp., 29 A D 2d 1025.) It also found that at the time of the fatal shooting deceased was in the performance of his duties as cab driver for deceased [sic] and that he was accosted by an assailant bent on robbery and attacked deceased as a good source ” and, therefore, that the accident arose out of and in the course of the employment. Since death was in the course of employment, a presumption followed that it arose out of the employment, in the absence of substantial evidence to the contrary (Workmen’s Compensation Law, § 21; Matter of Korchinski v. S. S. S. Bar & Grill, 35 A D 2d 862; see 1 Larson, Workmen’s Compensation Law, § 11.11 [a], pp. 132-134). Uncorroborated hearsay testimony of personal animosity between decedent and his killer did not constitute substantial evidence sufficient to overcome that presumption (cf. Matter of Guggenheim v. Hedke & Co., 32 A D 2d 1017, affd. 27 N Y 2d 596). In view of said presumption and since the record contains substantial evidence in support of the board’s decision, affirmance is mandated. Decision affirmed, with costs to the Workmen’s Compensation Board. Appeal from the decision of the Referee dismissed, without costs. Herlihy, P. J., Staley, Jr., Cooke, Sweeney and Simons, JJ., concur.  