Claim of Glass v. Square Music & Sport Shop 17 A.D.2d 1025

The only evidence of the exertion which is alleged to have precipitated the fatal heart attack was elicited from decedent’s son who said that upon going to the basement of the store premises where both he and his father were employed he found his father there and “ asked him what he was doing ”, to which his father replied that he was “‘just straightening up some stuff’”; the witness later quoting decedent, somewhat differently, as saying that “ he was just going to straighten up; he will be up soon.” In response to a series of leading questions by claimant’s attorney, the son then described this work as lifting and moving cartons of greeting cards; but it is not entirely clear how much of this work the witness (who twice testified that he asked his father what he was doing) had actually observed in the course of his five-minute visit to the basement and how much of his testimony was based upon inference. About an hour and a half or two hours after the conversation in the basement, decedent came upstairs, complained of chest pain and rested in a chair until accompanied to his home by another son, some few hours later. The board found: “ The history of accident, however, is too vague and without corroboration.” Appellant attacks this finding as defective, and unwarranted as well; but it was, of course, within the board’s province to interpret and evaluate the testimony to which we have alluded, and to seek corroboration for such of it as was found to be hearsay. Certainly the board was not bound to give preponderant effect to testimony which it should not find clear and convincing or of adequate weight. That the evidence was thus deficient seems to us the purport of the contested finding which, therefore, may not be disturbed. Decision unanimously affirmed, without costs. Present — Bergan, P. J., Coon, Gibson, Reynolds and Taylor, JJ.