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Buckley v. Gallagher Bros. Sand & Gravel Corp.

Court of Appeals of New York

Argued March 1, 1950. ; April 13, 1950, decided

No Number in Original

Opinion

 [*448]  Per Curiam. There was no evidence that claimant became disabled as the result of her duties as a telephone operator.  The tuberculosis contracted by her while serving as bookkeeper was not an occupational disease within the meaning of subdivision 2 of section 3 of article 1 of the Workmen's Compensation Law. The disease resulted not as an incident to claimant's occupation but from the fact that she worked alongside a tubercular coemployee who was also a bookkeeper. It was the coemployee and not the occupation which caused the disease. (Matter of Harman v. Republic Aviation Corp., 298 N.Y. 285; [**4]  Matter of Champion v. Gurley, 299 N.Y. 406.)

The order of the Appellate Division and the award of the Workmen's Compensation Board should be reversed, with costs  [*449]  in this court and in the Appellate Division, and the claim dismissed.

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300 N.Y. 447 *; 1950 N.Y. LEXIS 847 **; 92 N.E.2d 38

In the Matter of the Claim of MARGARET M. BUCKLEY, Respondent, against GALLAGHER BROS. SAND & GRAVEL CORP. et al., Appellants. WORKMEN'S COMPENSATION BOARD, Respondent.

Prior History:  [**1]  Matter of Buckley v. Gallagher Bros. Sand & Gravel Corp., 274 App. Div. 957, reversed.

APPEAL, by permission of the Court of Appeals, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered November 26, 1948, which unanimously affirmed an award of the Workmen's Compensation Board made under the Workmen's Compensation Law. Section 39 of the Workmen's Compensation Law authorizes compensation to an employee for disability or death caused by one of the occupational diseases mentioned in subdivision 2 of section 3 of the statute where such disease is due to "the nature of the corresponding employment as described in such subdivision" and was contracted therein. Section 40 denies such compensation "unless the disease is due to the nature of [claimant's] employment and contracted therein".

Disposition: LOUGHRAN, Ch. J., LEWIS, CONWAY, DESMOND, DYE, FULD and FROESSEL, JJ., concur.

Ordered accordingly.

CORE TERMS

occupation, disease, bookkeeper, coemployee, claimant