State Industrial Commission, the employer appeals. Award reversed, and matter sent back to Commission, with instructions. Argued before John M. Kellogg, P. J., and Cochrane, Henry T. Kellogg, Kiley, and Van Kirk, JJ. Edward P. Lyon, of New York City, for appellant. Charles D. Newton, Atty. Gen. (E. C. Aiken, of Albany, of counsel), for State Industrial Commission. Harry H. Thurlow, of New York City, for respondent. KILEY, J. On May 26, 1919, the claimant was at work for appellant, who was a contractor, operating at Jamaica, Long Island, N. Y. He was working at carpenter work, and received wages at the rate of 68 cents an hour. On the day aforesaid he was shingling the eaves of a house and fell to the ground below. Such fall fractured the cervical vertebræ, resulting in a permanent bilateral deformity and involved the posterior thorax nerve which supplied the serratus magnus muscle. This description means that fracturing the vertebræ in the back of the neck (spinal column) destroyed the nerve, which is the nerve that contracts the muscles that make possible the raising and lowering of the arms. Claimant can only raise his arms to about a horizontal position. The evidence is sufficient for the finding that claimant received such injury and that its result was as above stated. There was no injury by direct contact with the arms, no physical injury aside from the nerve injury. On suggestion from the Commission and before any formal decision was entered the employer paid to claimant money at different times. Several awards were then made on the basis of reduced earnings. The claimant had recovered sufficiently to do light work, but at reduced wages. On November 12, 1920, the Commission rescinded all previous awards made claimant and made a new award to claimant of $20 per week for 249.6 weeks, "the same being for 40 per cent. loss of use of both arms." At the time such award was made claimant was earning 51 cents an hour or $22.45 a week. This award gives claimant an income of $42.45 or practically 331⁄2 per cent. more than he was earning before injury. It may be urged that, if he had suffered a physical injury, in contradistinction to an injury to a nerve in the back of his neck which controls the arm motion, he would in that case be allowed and receive the same compensation as here allowed to him; but under such circumstances his wage-earning capacity generally would have been reduced so that he could not have earned 51 cents an hour after the injury; it would have been much less, and the figure as a basis to compare with the 68 cents per hour, the pre-injury wage, would have been less, and by reason thereof would have come under the other provision of section 15, subd. 3, of the Workmen's Compensation Law (Consol. Laws, c. 67). As it works out now the injury was greatly to his advantage from a financial point of view. He can use his arms to work now as well as ever except in the one capacity of elevation above his head or above a horizontal line. Such result as reached here could not have been within the original conception and final framing of the statute by our lawmakers. In Grammici v. Zinn, 219 N. Y. 322, 114 N. E. 397, the claimant lost the first, second, and third fingers and the first phalange of the fourth finger of the right hand. The Commission finally awarded for the permanent loss of the use of the hand. It was affirmed in the Appellate Division. 173 App. Div. 922, 157 N. Y. Supp. 1127. The Court of Appeals reversed, and held that, because the claimant was incapacitated from following his former occupation or vocation, it did not follow nor tend to prove that the hand or the use of it was lost. [1] Here there is no injury to the arm, elbow, hand, or fingers except such as comes from the injured nerve; all is growing stronger, except the nerve, injury to which is permanent. The evidence tends to show that all functioning parts will return to normal, except the limitation on the upward motion of the arms. If that anticipation is realized, then there should be some way to adjust the compensation claimant shall receive as conditions change. It cannot be done under this award. Claimant is asking for a commutation of the award into a lump sum, and should he be indulged in that quest, and finally become able to earn more than before the injury, where would justice to all parties obtain? This award should have been made under the last clause of section 15, subd. 3, which provides that "The compensation shall be sixty-six and two-thirds per centum of the difference between his average weekly wages and his wage-earning capacity thereafter in the same employment or otherwise, payable during the continuance of such partial disability, but subject to reconsideration of the degree of such impairment by the Commission on its own motion or upon application of any party in interest." I do not find a parallel case; but in addition to the Court of Appeals decisions above cited we have numerous cases where it is held that awards should have been made under the subdivision of section 15 above quoted. Supple v. Erie R. Co., 180 App. Div. 135, 167 N. Y. Supp. 391; Behrens v. Stevens Co., 188 App. Div. 66, 176 N. Y. Supp. 28. If this case does not come under the subdivision of the section above quoted, it is hard to conceive what cases it is intended to cover. [2] The appellant further urges that he offered claimant work at his former wage which he refused to accept, and therefore the claim should be dismissed. Claimant has a permanent disability, and at present and in his present occupation it impairs his earning power; to hold he must accept any work offered him, or lose the compensation that he is actually entitled to, would be a great injustice; his reason for nonacceptance, while not the most practical, is sufficient. He is entitled to compensation as above indicated, viz. to be computed under the provisions of section 15, subd. 3, last clause of that subdivision, designated as "other cases." The award should be reversed, and the matter sent back to the Commission, with instruction to make another award in accordance with this opinion. All concur. SEAVER v. PAYNE, DIRECTOR GENERAL OF RAILROADS. (New York Supreme Court, Appellate Division, Third Department. November 16, 1921.) 190 New York Supplement 724. 1. MASTER AND SERVANT-EMPLOYMENT IN INTERSTATE COMMERCE MUST BE SHOWN. To recover under the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665), it is necessary for the injured employee to establish that he, as well as the railroad company, was engaged at the time of his injury in interstate commerce. (For other cases, see Master and Servant, Dec. Dig. § 265[1].) 2. COMMERCE-INJURED SERVANT ENLARGING OLD TURNTABLE HELD NOT ENGAGED IN "INTERSTATE COMMERCE" UNDER FEDERAL EMPLOYERS' LIABILITY ACT. One assisting in enlarging of pit of an old turntable, for the purpose of installing a much larger turntable, was engaged in new construction and not in interstate commerce under the federal Employers' Liabilty Act (U. S. Comp. St. §§ 8657-8665), especially where the servant's work pertained exclusively to excavating outside of the old turntable, notwithstanding that the old turntable was being used while the new one was being constructed. (For other cases, see Commerce, Dec. Dig. § 27[8].) (For other definitions, see Words and Phrases, First and Second Series, Interstate Commerce. Appeal from Trial Term, Franklin County. Action by George Seaver against John Barton Payne, the Director General of Railroads. From a judgment entered on a verdict of the jury for the plaintiff, and from an order denying his motion to set aside the verdict, the defendant appeals. Judgment and order reversed, and complaint dismissed. Argued before John M. Kellogg, P. J., and Cochrane, Henry T. Kellogg, and Kiley, JJ. Cantwell & Cantwell, of Malone (John M. Cantwell, of Malone, and E. W. Lawrence, of Rutland, Vt., of counsel), for appellant. George J. Moore, of Malone (John M. Stark and Robert W. Upton, both of Concord, N. H., of counsel), for respondent. COCHRANE, J. [1] The plaintiff has recovered a verdict under the federal Employers' Liability Act (U. S. Comp. St. $$ 8657-8665) for injuries received while working at a turntable of the Rutland Railroad Company at Malone, N. Y. He claims to have received the injuries because of the negligence of the said company. The Rutland Railroad Company was engaged in interstate commerce between the states of New York and Vermont. For the plaintiff to sustain his judgment it is necessary for him to establish that he also at the time of his injury was engaged in interstate commerce as an employee of the railroad company. At the time of the accident there had been and was a turntable in constant use as an instrumentality of interstate commerce. Engines operating in both states were daily driven onto this turntable, which was operated in connection with their ordinary and general use. The turntable was 70 feet in diameter. At the time of the accident it was being enlarged to 90 feet in diameter. An excavation 10 feet wide and 8 feet deep was being made around the circumference of the old structure. A concrete wall was constructed around the outer edge of this enlarged excavation. The work of excavation and concrete construction was being made in sections. Plaintiff was removing the excavated dirt with a wheelbarrow when he received his injuries. Twelve or thirteen men were employed in the work. It extended over a period exceeding one month. The old table, which weighed about 80 tons, was to be replaced by a new one weighing about 100 tons. Everything was to be removed from the center of the pit. The pit was substantially all that would be left. The old turntable was operated by hand power. The new one was to be operated by electric power. Did the work being done as above described constitute repairs to the old turntable, or was it the construction of a new one? On the answer to this question depends the plaintiff's right to recover. Pedersen v. Dela ware, L. & W. R. Co., 229 U. S. 146, 33 Sup. Ct. 648, 57 L. Ed. 1125, Ann. Cas. 1914C, 153. In Raymond v. Chicago, Milwaukee & St. Paul Railway Co., 243 U. S. 43, 37 Sup. Ct. 268, 61 L. Ed. 583, the plaintiff was injured while working in a tunnel which was only partially bored, and it was held that he was not entitled to recover because the tunnel was not yet in use as an instrumentality of interstate commerce. In New York Central Railroad Co. v. White, 243 U. S. 188, 37 Sup. Ct. 247, 61 L. Ed. 667, L. R. A. 1917D, 1, Ann. Cas. 1917D, 629, it was held as follows: "The admitted fact that the new station and tracks were designed for use, when finished, in interstate commerce, does not bring the case within the federal act. * * * Decedent's work bore no direct relation to interstate transportation, and had to do solely with construction work, which is clearly distinguishable, as was pointed out in Pedersen v. Delaware, Lackawanna & Western R. R. Co., 229 U. S. 146, 152." In Kinzell v. Chicago, Milwaukee & St. Paul Railway Co., 250 U. S. 130, 39 Sup. Ct. 412, 63 L. Ed. 893, the plaintiff was injured while engaged in the work of constructing an earthen fill to take the place of a wooden trestle over which interstate trains were passing at the time of the accident. The Supreme Court of Idaho held: "That constructing a fill to take the place of a trestle which is being used in interstate commerce is new construction and that the fill does not become part of the railroad until it is completed and the track is placed upon it instead of upon the trestle." The United States Supreme Court reversed the Idaho Supreme Court on the ground that at the time of the accident the fill had proceeded to such an extent that the newly placed earth interfered with the tracks on which interstate trains were passing and that the work of the plaintiff was to keep the tracks free from such obstruction. On that ground it was held that the plaintiff was engaged in interstate commerce, but there was no criticism of the determination of the state court that the construction of the fill to take the place of the trestle was new construction and to that extent was not interstate commerce work. [2] It seems quite clear, in view of the facts heretofore recited, that the plaintiff was engaged in new construction. In no just or proper sense can it be said that the railroad company was repairing the old turntable. The latter was not merely being renewed or restored. It was not only being materially enlarged, but, as we have seen, the entire structure was undergoing a change for the purpose of establishing its adaptability to the enlarged structure. An electrically operated turntable 90 feet in diameter and weighing 100 tons can hardly be charcterized as repairs to a handoperated turntable 70 feet in diameter and weighing 80 tons. . The new structure was more than a substitute for the old one. Its functions were materially different. It permitted the use of larger engines and cars. Its purpose was to afford facilities beyond the capacity of the old structure. It did not contemplate the same kind of work which the old structure had performed, but it contemplated a develoment of railroad activities beyond the possibilities of the old structure. The question is practically the same as if the new turntable was being built in another locality. In its essential features this was new construction, and within the authorities the plaintiff was not therefore engaged in interstate commerce. Moreover, his work pertained exclusively to excavating outside of the old turntable and in no aspect of the case did it have anything to do therewith. The fact that the old turntable was being used while the new one was being constructed does not affect the question. The new structure had not yet become an instrumentality of interstate commerce. The judgment and order should be reversed, and complaint dismissed, with costs. All concur SMITH v. MacARTHUR BROS. CO. et al. (New York Supreme Court, Appellate Division, Third Department. November 16, 1921.) 190 New York Supplement, 644. MASTER AND SERVANT MOTHER HELD DEPENDENT WITHIN COMPENSATION LAW. Mother held a dependent entitled to compensation for her son's death under the Workmen's Compensation Law, though she and her husband owned a 90-acre farm with two houses upon it, subject to a $300 mortgage, and husband was earning $5 a day, had $300 in the bank, and was receiving $30 a month rent for the farm, and she had a fixed income from the government of $3.50 per week. (For other cases, see Master and Servant, Dec. Dig. § 388.) Kiley, J., dissenting. Appeal from State Industrial Commission. Proceeding by Jessie Smith under the Workmen's Compensation Law (Consol. Laws, c. 67) to obtain compensation for the death of her son, Franklin C. Smith, opposed by the MacArthur Brothers Company, employer, and the London Guaranty & Accident Company, Limited, insurance carrier. There was an award of compensation, and the employer and insurance carrier appeal. Award affirmed. Argued before John M. Kellogg, P. J., and Cochrane, Henry T. Kellogg, Kiley, and Van Kirk, JJ. William Butler, of New York City (Charles Stockdell Gray, of New York City, of counsel), for appellants. Charles D. Newton, Atty. Gen. (E. C. Aiken, Deputy Atty. Gen., of counsel), for State Industrial Commission. KILEY, J. (dissenting). It seems to me that appellants, in their first point, state fairly what facts must be established before compensation can be awarded to an alleged dependent, viz.; (1) "That sums of money have actually been given by deceased to his mother." (2) "That such sums of money received were actually used for her support." (3) "That she was in a position where such sums of money were necessary for her support at the time of the accident." (4) "That she did not have a husband who was able to support her." I think this position taken by appellants is fairly within the holding in Birmingham v. Westinghouse Electric & Mfg. Co., 180 App. Div. 48, 167 N. Y. Supp. 520, and Frey v. McLoughlin Bros., 187 App. Div. 824, 175 N. Y. Supp. 873. The situation here does not create a condition of dependency as contemplated by the statute. They owned a farm of 90 acres, two houses upon it, with but $300 mortgage against it, when the son was killed. Since then it has been paid down to $150. At the time of the accident, the time when dependency must exist, if at all, the father was earning $5 a day, he had $300 in the bank, was receiving $30 a month rent for the farm, and lived in one of the houses rent free, and his wife had a fixed income from the government of |