
    In the Matter of the Claim of Irene Lignori and Others, Appellants, against Bankers Trust Company and Another, Respondents. State Industrial Board, Respondent.
   Appeal from a decision of the State Industrial Board made October 11, 1935, denying death benefits, on the ground that decedent’s injury and death did not arise out of the employment. Deceased was a handy man employed in respondent’s apartment house, and slept on the premises, and was subject to call night or day. At four-thirty in the morning of November 30, 1934, a tenant received a telephone that his store was on fire, and thereupon he left the premises, and discovered that his store was not on fire. On his return, deceased was called from his room by the elevator operator, and a search was made by them of the basement to find out whether there had been an unlawful entry into the buEding. WhEe the search was in progress in the basement, the tenant telephoned the police. A plain clothes man arrived, and, upon identifying himself, was admitted by the doorman about five-fifteen a. m., and asked to be shown to the apartment of the tenant mentioned. At the same time the deceased, and the elevator operator, came up from the basement, and the doorman introduced the detective to the other two men, saying he was a detective, and told them to take him up to the apartment. Thereupon the deceased pushed aside the doorman, and dealt the detective a blow on the head with a sawed-off billiard cue which he was carrying. The detective drew his service revolver, shot and kflled the deceased. Evidence was submitted that the decedent had been convicted of crime five times between May, 1920, and February, 1929. The detective at the time regarded deceased innocent of wrong doing, and no accusation had been made against him. The evidence justified the decision of the Board in denying an award. Decision unanimously affirmed. Present — HiU, P. J., Rhodes, McNamee, Crapser and Heffernan JJ.  