
    In the Matter of the Claim of Pauline Klein, Respondent, against Queens Theatre and/or Century Circuit, Inc., and The State Insurance Fund, Appellants. State Industrial Board, Respondent.
   -This is an appeal by the

employer and insurance carrier from an award for death benefits made by the State Industrial Board to the widow of Nathan Klein, deceased employee. The Queens Theatre, a motion picture exhibitor located at Jamaica avenue, Queens Village, Long Island, N. V., was the employer herein. The theatre was one in a circuit operated by the Century Circuit, Inc., and deceased was in the service of the employer as an assistant operator for more than a year. Two operators were employed at all times in the projection booth of the theatre. On September 13, 1938, the two operators were Solomon Schulman and Nathan Klein, the deceased. They were both in the projection booth and both were at work. The deceased was sent from the Queens Theatre to the Franklin Theatre, which is one of the circuit, to replace an operator who had not appeared. When he arrived at the Franklin Theatre, the operator had appeared and his services were not needed and he returned to the Queens Theatre and reported to the assistant manager. He acted in his usual manner and went back to the projection booth. During the time he had been absent the show had been going on. Shortly after returning to the projection room the manager was notified there was trouble in the projection booth where the deceased and Schulman were working. A police officer was called. Klein was later found dead in the projection room. A patron of the theatre, occupying a seat in the balcony, heard noise coming from the projection booth around two o’clock. He thought he heard a call for help. He went upstairs to investigate. He tried to make an entrance into the projection booth but the door was locked. He heard someone yelling, “ Please, Sol,” “ Don’t, Sol.” He heard something hitting hard on the floor. Sol was the first name of Schulman. When the police officer succeeded in making an entrance into the booth the deceased was lying in the booth dead and Schulman was operating the projection machine. Schulman was indicted for manslaughter in the first degree and convicted of manslaughter in the second degree and sentenced to Sing Sing Prison and immediately removed to Dannemora State Hospital at Dannemora, N. Y., so that there was no testimony in the case, either from Schulman or from the deceased, who were the only persons that actually knew what happened, but the physical facts established that the accident which resulted in the death of Nathan Klein arose out of and in the course of his employment. On the evidence there was presumption arising under section 21 of the Workmen’s Compensation Law. Award unanimously affirmed, with costs to the State Industrial Board. Present — Hill, P. J., Crapser, Bliss, Schenck and Foster, JJ.  