
    In the Matter of the Claim of Rose Saccomanno against Grasse River Railroad Corporation et al., Appellants. State Industrial Commission, Respondent.
    
      Workmen’s Compensation Law — section foreman on railroad killed by train shortly before commencing work —■ when evidence does not warrant inference that he was engaged in interstate commerce.
    
    
      Saccomanno v. Grasse River R. R. Corpn., 191 App. Div. 761, affirmed.
    (Argued October 4, 1920;
    decided October 19, 1920.)
    Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered May 20, 1920, affirming an award of the state industrial commission.' Claimant’s husband was employed as a section foreman by defendant railroad corporation, a common carrier engaged both in interstate and intrastate commerce. A few minutes before time for commencing work while he was standing on a side track discussing with his men the work for the day, he was struck by a passenger train and killed. From the testimony it appeared that the deceased on the night before had told his men that they would work in the lumber yard the next day, but on the morning in question had informed them that they were to return to Silver Lake. At that point the work to be done was “ repairing ties under rails.” It did not appear for what the Silver Lake branch was used nor whether it was connected with the main line. The Appellate Division held that the evidence did not warrant the inference that deceased was, at the time of his death, engaged in interstate commerce and that “ under section 21 of the Workmen’s Compensation Law as to presumptions,” the award could not be disturbed.
    
      
      D. Theodore Kelly and Howard B. Harte for appellants.
    
      Charles D. Newton, Attorney-General (E. C. Aiken of counsel), for respondent.
   Order affirmed, with costs; no opinion.

Concur: Chase, Collin,- Crane and Andrews, JJ. Dissenting and voting for a new hearing: His cock, Ch. J., Cardozo and McLaughlin, JJ.  