
    In the Matter of the Claim of Florence O’Brien against United States Railroad Administration et al., Respondents. State Industrial Commission, Appellant.
    
      Workmen’s Compensation Law — locomotive engineer returning from, performing interstate service intending to put up engine for night, engaged in interstate commerce.
    
    
      O’Brien v. U. S. R. R. Administration, 194 App. Div. 63, affirmed.
    (Argued March 4, 1921;
    decided March 22, 1921.)
    Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered November 22, 1920, reversing an award of the state industrial commission and dismissing a claim made under the Workmen’s Compensation Law. Claimant’s husband, a locomotive engineer, was found unconscious in the cab of his engine on his return from performing an interstate service, intending to put his engine up for the night. He died without regaining consciousness. There was testimony that death wa.s due to poisoning by carbon monoxide gas escaping from the firepot of his engine. The Appellate Division held that he was engaged in interstate commerce and that a claim for his death 'was not within the jurisdiction of the industrial commission.
    
      Charles D. Newton, Attorney-General (E. C. Aiken of counsel), for appellant.
    
      
      William, H. Harding and Charles F. Cummings for claimant.
    
      Robert E. Whalen for respondents.
   Order affirmed, with costs against the state industrial commission; no opinion.

Concur: His cock, Ch. J., Chase, Cardozo, Pound, McLaughlin, Crane and Andrews, JJ.  