gence of a third party, in which case an insurer might reimburse itself for any moneys paid to a claimant under an award. For that reason an insurer would find it advantageous not to raise the bar of the statute. The Industrial Commission found in this case that the deceased left a mother him surviving, but that she had not filed a claim for compensation, although one year had elapsed from the date of the death of the deceased. If at the time of the accident she were dependent upon the deceased for her support, then she was. in my judgment, a person "entitled to compensation." As there was no proof that she was not dependent, it seems to me that the condition precedent upon which an award to the state treasurer depends has not been fulfilled, and that the award should not have been granted. I favor a reversal. CRISO v. EDGEWATER SAWMILLS CO. ET AL. (New York Supreme Court, Appellate Division, Third Department. November 16, 1921.) 191 New York Supplement, 316. 1. MASTER AND SERVANT DRAFTS HELD NOT "MONEYS PAID," PRECLUDING RETROACTIVE MODIFICATION OF COMPENSATION AWARD. Workmen's Compensation Law, § 22, authorizing review and modification of awards. and providing that no such review shall affect such award as regards any "moneys already paid," was intended to prevent a recovery by an insurer of any moneys actually paid a claimant under an award subsequently vacated or decreased, and was not intended to relieve an insurer, which paid under the original award, from any obligation to pay an increase, and the power of the commission to modify awards retroactively is not limited, if the moneys have not actually been paid, and "moneys" are not paid by delivery of drafts which are not cashed. (For other cases. see Master and Servant, Dec. Dig. § 419.) 2. MASTER AND SERVANT-STATUTORY WAGE BASIS OF COMPENSATION HELD TO APPLY ONLY TO DEATH BENEFITS. Workmen's Compensation Law, § 16, providing that any excess of wages over $100 a month shall not be taken into account in computing compensation "under this section," applied exclusively to death benefits. (For other cases, see Master and Servant, Dec. Dig. § 385[1].) Appeal from State Industrial Commission. Proceeding by Louis Criso under the Workmen's Compensation Act to obtain compensation for personal injuries, opposed by the Edgewater Sawmills Company, employer, and the Travelers' Insurance Company, insurance carrier. There was an award of compensation, and the employer and insurance carrier appeal. Award modified, so as to provide that, before any payments are made to the claimant. drafts held by him shall be returned to the insurance carrier, and. as so modified, unanimously affirmed. Argued before John M. Kellogg, P. J., and Cochrane, Henry T. Kellogg, Kiley, and Van Kirk, JJ. Benjamin C. Loder, of New York City (William B. Davis, of New York City, of counsel), for appellants. Charles D. Newton, Atty. Gen. (E. C. Aiken, of Albany, of counsel), for respondent. HENRY T. KELLOGG, J. The claimant was a minor of the age of 16 years when he met with an accidental injury, resulting in the loss of his right hand. The Industrial Commission made an award based upon wages actually received at the date of the accident. One year later it reconsidered the case, and upon proof submitted determined that under normal conditions the wages of claimant would have increased. Accordingly, exercising the powers conferred by subdivision 5 of section 14 of the Workmen's Compensation Law (Consol. Laws. c. 67), it made a modified award, to take effect as of the date of the accident, on the basis of a wage of $25 per week. Intermediate the two awards the appellant insurer sent to claimant drafts totaling the amount due to claimant under the first award for a period of 36 weeks. None of these drafts were cashed by claimant. although he failed to return them to the appellant. [1] The appellants argue that under section 22 of the Workmen's Compensation Law, as construed by Matter of Salotar v. Neuglass & Co., 228 N. Y. 508, 126 N. E. 922. the commission had no power to modify the award as to installments previously payable. That section, after providing for the review and modification of awards previously made, places the following limitation thereupon; "No such review shall effect such award as regards any moneys already paid." The obvious purpose of this section was to prevent a recovery by an insurer of any moneys actually paid a claimant under an award subsequently vacated or decreased. A less obvious purpose was to relieve an insurer. which had paid under the original award, from any obligation to pay an increase. Matter of Salotar v. Neuglass & Co., supra. We think that the literal meaning of the words "any moneys already paid" should be given effect, and that, if moneys. as in this case, have not actually been paid, the power of the commission to modify awards retroactively is not limited. [2] The appellants, also, argue that, under the last paragraph of section 16 of the Workmen's Compensation Law, the commission could not make a weekly wage of $25 the basis of an award, since that sum exceeds a wage of $100 per month. The paragraph in question, as it stood when this accident occurred, read as follows; "Any excess of wages over one hundred dollars a month shall not be taken into account in computing compensation under this section.” The provision does not apply, for the reason that "this section" is section 16. which applies exclusively to death benefits, and they are not involved here. The award should be affirmed. Award modified, so as to provide that, before any payments are made to the claimant under said award, the drafts held by him shall be returned to the insurance carrier, and, as so modified, unanimously affirmed. All concur. JEFFREYES v. CHARLES H. SAGER CO. ET AL. (New York Supreme Court, Appellate Division, Third Department. November 16, 1921.) 191 New York Supplement, 354. MASTER AND SERVANT POISONING OF HAND BY CONTINUOUS DIPPING IN SOLUTION HELD NOT AN "ACCIDENT." WITHIN WORKMEN'S COMPENSATION LAW. The poisoning of fingers from dipping the hand in a solution in the development of photographic plates in the course of employment, which dipping occurred some 500 times each day during a week, held not an "accident," for which compensation could be awarded; an "accident" being an event which takes place without foresight and expectation, and which occurs on the instant. rather than something which continues, progresses, or develops. (For other cases, see Master and Servant, Dec. Dig. § 373.) (For other definitions, see Words and Phrases. First and Second Series. Accident-Accidental.) John M. Kellogg, P. J., and Kiley, J., dissenting. Appeal from State Industrial Commission. Claim by Hila Dobson Jeffreyes for compensation under the Workmen's Compensation Law (Consol. Laws, c. 67) against the Charles H. Sager Company, employer. From an award by the State Industrial Board. the employer and the Travelers' Insurance Company, insurance carrier, appeal. Award reversed, and claim dismissed. Argued before John M. Kellogg, P. J., and Cochrane, Henry T. Kellogg, Kiley, and Van Kirk, JJ. Benjamin C. Loder, of New York City (William D. Davis. of New York City, of counsel), for appellants. Charles D. Newton, Atty. Gen. (E. C. Aiken, Deputy Atty. Gen., of counsel). for respondents. HENRY T. KELLOGG, J. The claimant was employed by a photographer in the development of photographic plates. It was necessary for her, more than 500 times each day, to dip plates, held in her left hand, into a poisonous chemical solution. Having performed this work continuously for more than a week. her fingers became red and swollen. She then went to a physician, who gave her treatment. Eventually the end of the little finger of her left hand became mummified, gangrene set in. and an amputation thereof, becoming necessary, was performed. The pathological cause of her injuries was the contraction of the blood vessels of her finger through the gradual action of the chemical solution. In my opinion there was no accident involved for two reasons; First, the contract made by claimant between her hand and the solution was voluntary and .intentional. In Matter of Woodruff v. R. H. Howes Construction Co., 228 N. Y. 276, 127 N. E. 270, the claimant developed a frog felon on the palm of his right hand as the result of the continuous pounding of his hand upon the head of a screwdriver. An award was reversed, for reasons of which the following was one: "This testimony was insufficient to show that the injury was caused by accident. An accidental event takes place without one's foresight or expectation; an event that proceeds from an unknown cause, or is an unusual effect of the known cause. and therefore not expected.” In our case the one event, namely. the coming into contact of the hand and the solution, was expected, and therefore not accidental. Secondly, the injuries resulted from no occurrence which is referable to any particular moment of time which is definitive. The word "accident" is derived from the Latin verb "accidere," signifying "fall upon, befall, happen, chance" (Century Dictionary), and denotes an event which occurs upon the instant, rather than something which continues. progresses. or develops. In Marshall v. East Holywell Coal Co., Ltd.. 7 W. C, C. 19, it was held that a "beat hand" or "beat knee," a miner's injury, caused by the gradual process of continual friction. was not an accident. Collins, M. R., said that "the accidental must be something which is capable of being assigned to a particular date." Mathews, L. J., said: "It seems to me that it would be as reasonable to call the occurrence an accident as to say that it was an accident when a man ceased to be able to work because he was worn out by long hard work." In Steel v. Cammell, Laird & Co.. Ltd.. 7 W. C. C. 9, it was held that lead poisoning, being due to a gradual process, could not be accidental in its origin. One of the reasons assigned by the court for its decision was the fact that the statute required a notice of an accident to be given within a stated period after it occurred, and that from this it was to be inferred that the accident contemplated must be one having a definite moment of origin. The same conclusion can be drawn from our statute requiring a notice of an accident to be given within 30 days thereafter. It seems to me, therefore, that as the injuries in this case arose from the application of a poisonous solution during the working hours of claimant for a period of more than seven days, and as the application was voluntarily made, she received no accidental injury for which an award could properly be granted. The award should be reversed, and the claim dismissed. The claimant sustained JOHN M. KELLOGG, P. J. (dissenting). serious injuries, which arose out of and in the course of the employment. The only question here is: Were the injuries accidental, within the meaning of the Workmen's Compensation Law? The employer who conducted a drug store, in connection therewith was developing and manufacturing films. The claimant had been employed for about a week before September 30, 1919, in developing the films in a solution which contained dangerous chemicals. It was necessary for her to dip the fingers of the left hand in the solution. She developed from 500 to 800 films per day, many of which required the insertion of the fingers in the liquid several times. Before September 30th she noticed that her fingers were tender, and as she was leaving for lunch on that day, about 11:30 a. m.. while drying her hands, she "noticed that the flesh was broken through, sort of a rash," and that her fingers were tender, a red streak around the nails, and that the nails were discolored. She did not know that there was any abrasion or scratch upon her hand before that time. She stopped work, but 'white spots developed upon the fingers and broke, leaving scars, and the trouble progressed, with the result that her finger was amputated, and she suffered and will suffer other serious consequences from the poisoning. She had not been informed. and did not know, that the solution was poison ous The metol solution for developing films is a German preparation; sometimes it causes poisoning of the hand. The photographer who was sworn upon the subject swears that in his experience of 18 years he has known of two persons who were poisoned, and of others who were affected about as the claimant was on September 30th, and had to quit work and had no further trouble. Many people can use the solution without any inconvenience. In some cases it may cause inflammation of the fingers around the nails, making them very tender, and soon the skin would come off, as though something rubbed it, and poisoning may result. "Elon" is the trade-name of a substitute American solution, which uses parmidophenol hydrochloride in place of metol. It is less refined than the metol and is much stronger. The solution which the claimant was using was found to be six times stronger than indicated by the formula upon the bottle. The attending physician says that the claimant was poisoned by the solution, and that he treated another person who was poisoned in the same way. In using the solution, if a person is affected by it, the skin is irritated. and the blood vessels contracted; the contraction of the blood vessels is the most serious part of it. The solution is more penetrating down to the blood vessels than poison ivy is. In poison ivy the skin itself is inflamed, but it does not go through the skin. Metol poisons more gradually, but is practically the same. It may develop in two or three days, while poison ivy would not develop until after 24 hours. The metol is much more penetrating. The most common germicide in use is bichloride of mercury; it takes the skin off. It is not being used now by surgeons, because of its effect upon them and the patients. The solution used here was stronger than the ordinary germicide. fore September 30th claimant had suffered no inconvenience from her fingers, and there was nothing noticeable in their condition. Be The commission has found that, by the immersion of the fingers in the solution, the dangerous chemicals entered the pores of the skin of the fingers and penetrated the tissues and flesh underneath, and because of the peculiar poisonous action of the dangerous chemicals the blood vessels of the fingers were contracted. particularly the blood vessels of the little finger of the left hand and as a result the injuries for which compensation was granted resulted. Concededly the claimant and her employer did not anticipate that she was liable to suffer any damage or inconvenience on account of the use of the solution, and the first injury from it was apparent at 11:30 on September 30th. The result coming from such an unexpected source and in the manner in which it did, was an accident. "An accident is an event which takes place without one's foresight or expectation; an event that proceeds from an unknown cause or is an unusual effect of the known cause, and, therefore, not expected." Matter of Woodruff v. R. H. Howes Construction Co., 228 N. Y. 276, 127 N. E. 270. In that case the employee, who had a frog felon in the palm of his hand, resulting from the continued use of a screwdriver, was denied compensation because there was no evidence that the felon resulted in the manner in which he thought it did. It did not appear that the use of the screwdriver was the cause of the injury. The case leaves us to assume that. if it had so appeared, compensation would have been sustained. Probably it is true to say that, in the strictest sense and dealing with the region of physical nature, there is no such thing as an accident' [citing authority]. But our point of view, in fixing the meaning of this contract, must not be that of the scientist. It must be that of the average man [citing authorities]. Such a man would say that the dire result, so tragically out of proportion to its trivial cause, was something unfore |