Claim of Libertucci v. New York Central Railroad Co.

Van Kirk, P. J., Hinman and Davis, JJ., concur; Hasbrouck, J., concurs, with a memorandum.

Interpreting the finding of use of the engine in interstate commerce as equivalent to a finding that the engine was engaged in interstate commerce, I vote for affirmance. Hill, J., dissents and votes for reversal on the ground that the presumption which exists by reason of section 21 of the Workmen’s Compensation Law, controls, as claimant was engaged in preliminary work on the engine and a later contingency, the arrival of the parcel post package, would determine whether the. train would be engaged in interstate or loca' commerce (Carey v. N. Y. C. R. R. Co., 250 N. Y. 345), and the statement by the conductor that he did not recall a run when the train did not carry an interstate item does not create a preponderance of probability that the train would engage in inteistate commerce as the employer had records to show the fact as to each of previous runs of the train.