property which the school district had purchased after the fire for the purpose of conducting a temporary school. It seems to be clear that the statute did not attempt to deal with any of the real estate belonging to the school district, except such as should be within the annexed territory, and while it is true, of course, that personal property may consist of money, we think, under the circumstances here presented, it is a forced construction of the statute to hold that it contemplated transferring any portion of the insurance money resulting from the burning of the school building. That fund in equity stood for the building which had been destroyed. The insurance company, no doubt, had the option of restoring the building or of paying the money, and in paying the money the essence of the property was not changed; it was still, in equitable contemplation, the building. The inhabitants of the district had, prior to the enactment of the legislation, and while it was unquestionably the property of the district, dedicated it to the construction of a new building, and they had provided in connection therewith to bond the district for $46,000 additional, and the Legislature had the particular facts before it, for it was provided in the act that:

The city "shall not be liable for any portion of a bonded debt of the school district incurred subsequent to January first, nineteen hundred and fourteen, for the construction of a schoolhouse in the portion of the school district not included by this act in the city of Schenectady."

Here, if anywhere, was the proper place to provide what was to be done with the insurance money arising from the destruction of the school building. The bonds which had been authorized were a part of the very transaction under consideration, for the entire sum had been dedicated to the construction of a schoolhouse, and it was not to be presumed that the inhabitants would have voted this $46,000 of bonds, except in connection with the appropriation of $16,000 of insurance money to the same object, and if it was the intention of the Legislature to step in an disrupt the undertaking, making it necessary to entirely revise the plan of action, it was natural to expect that it would be done in connection with the provision relieving the city of Schenectady of any liability upon the bonds. Probably, if the old school building had been standing, no one would have thought of suggesting that any part of the value of the same should be apportioned to the city of Schenectady. No provision was made for sharing any part of the value of the land on which it had previously stood, and no language is used in connection with the relieving of the city of Schenectady from responsibility for the bonds; but we are asked to hold that a provision, found in section 7, that this board of audit "shall also apportion to the city such personal property of the school district as may be just and equitable," gives authority for undoing the work of the inhabitants of the school district when they were fully empowered to act, and to take from the district the funds necessary to carry out its plans for housing the school children.

We do not think the Legislature intended this result. A thing which is within the letter of a statute is not within the statute, unless it be within the intention of the makers (Riggs v. Palmer, 115 N. Y. 506,

509, 22 N. E. 188, 5 L. R. A. 340, 12 Am. St. Rep. 819), and it would be difficult to conceive of the Legislature intentionally making use of the form of the present statute for the purpose here contended. The provisions of section 7 have ample scope in dealing with the physical personal property, and the insurance money resulting from the loss of personal property, without stretching it to cover money in the hands and control of the school district arising from the destruction of real estate, and which was an essential element in the transaction resulting in the authorizing of the bonds for the construction of a school building. So radical an interference with a condition existing to the knowledge of the Legislature is not to be presumed, where all of the language of the statute can be put into an intelligent use without such construction. It is to be observed that, while the debts, demands, claims, and charges against the school district are to be "apportioned and adjusted between the city and the school district," "except that the city and portion hereby annexed shall not be liable for any portion of a bonded debt of the school district incurred subsequent to January first," and that this apportionment and adjustment is made to depend upon the basis of the assessment roll of the school district, the board of audit is authorized also to "apportion to the city such personal property of the school district as may be just and equitable," without any reference to the assessment roll. One provides for the method of dealing with the debts and obligations, which are to be based on the assessment roll, while the distribution of personal property is to be made upon a basis which shall be "just and equitable"; and it is well known that assessment rolls do not always furnish the basis of a just and equitable distribution of benefits or burdens, while in the matter now before us the board of audit has applied the arbitrary figures of the assessment roll to the distribution of these insurance moneys.

We are of the opinion that the board of audit did not have jurisdiction of the insurance moneys arising from the destruction of the real estate belonging to the school district, and that in this regard the determination of the board of audit should be set aside.

[2, 3] We are persuaded that the contention of the relators that the act is unconstitutional, because of its provisions exempting the city of Schenectady from liability upon the bonds issued subsequent to January 1st, is without merit, and that the amount claimed by the school district for tuitions for pupils from the annexed district is not due, because of the fact that, so far as appears, the pupils were merely receiving what had already been provided for out of the tax levy for the then current year.

We find no reason for interfering with the other provisions of the audit. We think the audit should be amended by striking out the provision distributing any portion of the $16,000 of real estate insurance, and, as so modified, approved, without costs. Determination modified as per opinion, and, as modified, affirmed, without costs. All concur.

FREDENBURG v. EMPIRE UNITED RYS., Inc. (No. 177/94.) (Supreme Court, Appellate Division, Third Department. July 1, 1915.)

1. MASTER AND SERVANT 250, New, vol. 16 Key-No. Series-WORKMEN'S COMPENSATION LAW-AMOUNT OF COMPENSATION.

Workmen's Compensation Law (Laws 1914, c. 41) § 14, provides that, except as otherwise provided therein, the average weekly wages at the time of the injury shall be the basis of compensation; that, if the employé shall have worked in the same employment during substantially the whole of the preceding year, his average annual earnings shall consist of 300 times his average daily wages for the days when so employed; that, if not, such earnings shall consist of 300 times the average daily wage of an employé of the same class working substantially the whole of such year; and that, if neither of these methods can reasonably and fairly be applied, such annual earnings shall be such sum as, having regard to the previous earnings of the employé and other employés of the same class, shall reasonably represent the annual earning capacity of such employé. A motorman for an electric railway company had for several years worked on passenger cars, receiving 30 cents an hour. The railway company every six months permitted its employés in the order of their seniority to choose their runs, and such employé, about one month before the injury, had thus obtained the running of an express car at $3.50 per day. There was a reasonable possibility of his continuing on that run, though at the end of six months he might lose it. The company's secretary testified that it was the company's custom to pay an employé in the service of the company as long as the injured employé 35 cents an hour upon a freight run. Held, that this tended to fix the average daily wage of a motorman in such employment prior to the time the claimant took such run, as well as the average earnings of other employés, and the Commission's award on the basis of $3.50 a day was warranted by the evidence.

2. MASTER AND SERVANT 250, New, vol. 16 Key-No. Series-WORKMEN'S COMPENSATION LAW-AMOUNT OF COMPENSATION.

The Workmen's Compensation Act provides for a compensation amounting to two-thirds of the average weekly wages for all disabilities, total or partial, though for longer or shorter periods. An employé sustained injuries resulting in the amputation of one foot and other injuries not shown to be permanent, which in themselves would have disabled him from the time of his injury to the date of an award by the Compensation Commission. The Commission awarded two-thirds of his weekly wages for 205 weeks for the loss of the foot. Held, that the Commission could not, in addition to such award, make a further award, running concurrently with the first award, for other injuries than the loss of the foot, though at the expiration of the 205 weeks, if disability still existed by reason of other injuries, the employé might be entitled to a further award; it being the plain purpose of the statute that awards shall take effect consecutively, rather than concurrently.

Appeal from Workmen's Compensation Commission.

Proceedings under the Workmen's Compensation Act by Guy Fredenburg to obtain compensation for personal injuries from the Empire United Railways, Incorporated, employer and self-insurer. From awards made by the Workmen's Compensation Commission, the employer appeals. Affirmed in part, and reversed in part.

Argued before SMITH, P. J., and KELLOGG, LYON, HOWARD, and WOODWARD, JJ.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

Nottingham, Nottingham & Edgcomb, of Syracuse (Ernest I. Edgcomb, of Syracuse, of counsel), for appellant.

Egburt E. Woodbury, Atty. Gen. (E. C. Aiken, Deputy Atty. Gen., of counsel), for respondent.

Jeremiah F. Connor, of New York City, for State Workmen's Compensation Commission.

LYON, J. This is an appeal from awards made by the Workmen's Compensation Commission. The facts are undisputed. The claimant, at the time of receiving the injuries, November 7, 1914, was a motorman on a trolley express car of the defendant and had been in its employ for seven years. He was injured while standing on top of the car, removing the trolley pole from its socket. One end of the trolley pole came in contact, with the trolley wire while his right foot was against the socket, severely burning both hands and both feet, and less seriously injuring other portions of his body. These injuries necessitated the amputation of his right foot, and at least temporarily totally incapacitated him from using his left foot or either hand. At the time of sustaining the injuries he had worked for 1 month and 2 days, Sundays excluded, as the motorman of the express car, receiving $3.50 for each day he worked. Prior to taking service as a motorman upon an express car, he had worked for the defendant for some years as a motorman upon passenger cars, receiving 30 cents per hour for the time he worked. During the 12 months preceding taking service upon the express car, he had worked 343 days and had received $961.85. Each 6 months the employés of the defendant were allowed to choose their runs in the order of seniority of service. When the claimant, who was the seventh on the list, came to make his choice, the express run seemed to him to be the most desirable of those left, and he chose that. Whether upon a new choosing at the end of 6 months the express run might be chosen before it came his turn to make a choice, and he be compelled to return to a passenger run at 30 cents per hour, but with the opportunity of making overtime, was, of course, uncertain.

Upon a hearing had before a commissioner and a deputy commissioner January 12, 1915, an award was made claimant for the loss of his foot; and upon a hearing had before deputy commissioners January 26, 1915, an award was made for injuries other than the loss of a foot. The Commission, by decision of date January 28, 1914, approved and confirmed said two awards, and formally awarded the claimant compensation for the loss of his right foot for 205 weeks from November 21, 1914, at the rate of $13.46 per week, which was two-thirds of his weekly wages, fixing his average weekly wages at $20.19 per week, or upon the basis of $3.50 per day, and also awarded the claimant compensation of $13.46 per week, for 14 weeks, from November 21, 1914, ending February 27, 1915, for disability caused by injuries other than the injuries to and the amputation of his foot, and continued the case for further hearing. In its conclusions of fact, upon which the awards were based, the Commission found that the injuries to his right foot and its amputation would have disabled

him from working, had he received no other injuries, from November 7, 1914, until the date of the award, and that the remaining injuries, had he received no injuries to his right foot, would have disabled him from working from November 7, 1914, until the date of the award.. The correctness of these findings cannot be questioned; nor, doubtless, could one that the disability caused by injuries other than the injuries. to and the amputation of the right foot would continue until February 27, 1915.

We shall treat such as the conceded facts. The defendant makes no objection to the award of 205 weeks for the loss of the foot. It bases its appeal upon the claim that claimant's average weekly wages should have been computed upon his earnings upon the passenger run, rather than upon the express run, and that no award whatever should have been made in addition to the award of 205 weeks for the loss of his right foot.

[1] As to the computation of claimant's wages, section 14 of the Compensation Law provided that, except as otherwise provided in that chapter, the average weekly wages of the injured employé at the time of the injury should be taken as the basis upon which to compute compensation or death benefits, and should be determined as follows: If the injured employé shall have worked in the employment in which he was working at the time of the accident during substantially the whole of the year immediately preceding his injury, his average annual earnings shall consist of 300 times his average daily wage. If he shall not have so worked, the basis for computation shall be the average daily wage which an employé of the same class, working substantially the whole of such immediately preceding year in the same or in a similar employment in the same or a neighboring place, shall have earned when so employed. If either of the foregoing methods of arriving at the annual average earnings cannot reasonably and fairly be applied, such annual earnings shall be such sum as, having regard to the previous earnings of the injured employé, and of other employés of the same or most similar class, shall reasonably represent the annual earning capacity of the injured employé in the employment in which he was working at the time of the accident.

The employment of the claimant as motorman on the express car was assured for at least 6 months from the time he entered upon it, and there was a reasonable possibility of his continuing on that run. Although he had not worked as motorman on the express car for the year immediately preceding the accident, it appears from the affidavit of the secretary of the defendant that it was the custom of the defendant to pay an employé who had been in the service of the company as long as the claimant 35 cents per hour upon a freight run. This tended to fix the average daily wage of a motorman in such employment prior to the time the claimant took that run, as well as to fix the average earnings of other employés in the same position. We think the finding of the Commission as to the average weekly wages of the claimant was fully warranted by the evidence.

[2] As to the award of $13.46 for injuries other than the loss of the right foot, consisting mainly of injuries to the hands, the claimant

154 N.Y.S.-23