
    In the Matter of the Claim of Fred A. Frost against H. H. Franklin Manufacturing Company et al., Respondents. The State Industrial Board, Appellant.
    
      Workmen’s compensation — injury to workman not arising out of employment.
    
    
      Frost v. Franklin Mfg. Co., 204 App. Div. 700, affirmed.
    (Argued October 2, 1923;
    decided October 16, 1923.)
    Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department entered March 7, 1923, which reversed an award of the State Industrial Board made under the Workmen’s Compensation Law. Claimant, who was in charge of defendant manufacturing company’s tool department, was writing out an order for materials on a window shelf. A workman came and asked for wire which claimant handed to him. He began to file off a piece. Almost simultaneously with the act of handing out the wire, claimant greeted the said employee by pulling the peak of his cap down over his eyes, and the said employee attempted to lift the cap with the same hand in which he held a file, the file flew from its handle and struck claimant in the right eye causing loss of sight thereof. The Appellate Division held that the accident did not arise out of the employment.
    
      Carl Sherman, Attorney-General (E. C. Aiken of counsel), for appellant.
    
      Clarence B. Tippett for respondents.
   Order affirmed, with costs against State Industrial Board; no opinion.

Concur: Hiscock, Ch. J., Cardozo, Pound, Mc-Laugh!lin and Andrews, JJ. Dissenting: Hogan and Crane, JJ.  