Claim of Mccarthy v. Walsh Construction Co.

-Award affirmed, with costs to the claimant against the employer and the insurance carrier. Whitmyer, Hill and Hasbrouek, JJ., concur; Hinman, Acting P. J., and Davis, J., concur on the ground that the affidavit of Marie Mullaney was competent under the unusual circumstances presented, and furnished facts by hearsay showing a motive and purpose for the act of the decedent *870McCarthy in going along the railroad on an errand in the interest of the employer, during the performance of which he was killed; and there were circumstances corroborative of the affidavit. (Workmen’s Compensation Law, § 118; Matter of Carroll v. Knickerbocker Ice Co., 218 N. Y. 435, 440; Matter of Fogarty v. National Biscuit Co., 221 id. 20.) Further, except for the affidavit it is apparent that the Board would not have found for the claimant, for the claim had once been dismissed by the Board on all the proof presented; .and the award was made to claimant only when the affidavit supplied evidence deemed sufficient.