to an accidental flying of a spark from a furnace fire under a boiler. The Sate Industrial Commission found the fact of the accident, that it was within the statute, but refused to make an award, upon the ground that no notice in writing was given to the employer or the insurance carrier, and that both of these were prejudiced by the failure to comply with the requirements of section 18 of the Workmen's Compensation Law (Consol. Laws, c. 67). The claimant appeals from this determination. The determination of the State Industrial Commission should be affirmed. The presumption is, in the absence of evidence to the contrary, that the failure of the claimant to give the notice required by law is prejudicial to the employer and insurance carrier. It is only where the claimant is able to show that the notice could not have been given, or that the insurance carrier and employer were not, in fact, prejudiced by the failure to give the notice, that there is any justification for the State Industrial Commission to excuse the failure. Sicardi v. Sarnoff Hat Co., 176 App. Div. 13, 162 N. Y. Supp. 337. It is not enough, in given case, that the injury might not have been limited in its effect by prompt action; the employer and the insurance carrier have a right to an opportunity to inquire into the happening of the accident. It is a very simple matter, on discovering an injury to an eye, to fix the time and place of the happening of the same, to come within the provisions of the Workmen's Compensation Law, though in fact it may have been received under circumstances involving no liability, and those who are called upon to pay for the injury have a right to have the matter called to their attention in the manner prescribed by the act. Where this is not done, the claimant must afford the evidence to warrant the State Industrial Commission in excusing the neglect. That is the condition upon which the right to compensation, without respect to the negligence of the employer, is based, and it may not be disregarded. The determination of the State Industrial Commission should be affirmed. All concur. SUPREME COURT OF NEW YORK. APPELLATE DIVISION, THIRD DEPARTMENT. WILKES et al. V. ROME WIRE CO. et al. In re EMPLOYERS' LIABILITY ASSUR. CORRPORATION, Ltd.* MASTER AND SERVANT-WORKMEN'S COMPENSATION ACT -DEPENDENTS. Under evidence, heid, mother and youngest brother of deceased were not dependent on him for support at time of his death, within Workmen's Compensation Law. (For other cases, see Master and Servant, Dec. Dig. § 405[5].) * Decision rendered, Nov. 13, 1918. 172 N. Y. Supp. 406. Appeal from State Industrial Commission. Proceeding under the Workmen's Compensation Law by Elizabeth Wilkes and another, mother and brother, as dependents of James Wilkes, deceased, for compensation, opposed by the Rome Wire Company, employer, and the Employers' Liability Assurance Corporation, Limited, insurance carrier. Awards were made, and the employer and insurance carrier appeal. Reversed and dismissed. Argued before John M. Kellogg, P. J., and Lyon, Woodward, Cochrane, and Henry T. Kellogg, JJ. Bertrand L. Pettigrew, of New York City, for appellants. Merton E. Lewis, Atty. Gen., and Robert W. Bonynge, of New York, City (E. C. Aiken, Deputy Atty. Gen., of counsel), for respondent State Industrial Commission. Michael J. Larkin, of Rome, for respondents Wilkes. LYON, J. The question presented by this appeal is whether the mother and youngest brother of the deceased were dependent upon him for support at the time of his death. James Wilkes was in the employ of the Rome Wire Company and met an accidental death. He was receiving an average of $15.80 per week, with 10 per cent bonus. Of this sum he paid his mother $10 per week, $5 for his board, and $5 towards the home, and to help send the little brother to school, and to buy things." The father was employed in the Rome Iron Mills, Incorporated. He had received in wages for the week immediately preceding the son's death $39.96. He received the week preceding $44.96. His wages for the year were $1,611.81, or an average of $31.60 per week. He gave his wife $20 per week for the support of his family, which consisted of himself, his wife, and their children, James Arthur, Joseph, Howard, and Florence. None of them, excepting James, Howard, and Florence, boarded at home. The mother received from Arthur, Joseph, and Florence $3 each per week, making her weekly income, with the $10 received from James and $20 received from the husband, $39 per week. The husband spent his remaining $11.60 for clothes, filling or grading about the house, and anything the family needed. The wife testified that it cost to support the family during April, the month of the death of the son, $15 to $20. They bought the house in July, 1916 and during the nine months between that date and April 2d, when James was killed, paid $275 thereon, an average of about $30 per month. Furthermore, during the previous years of idleness of the father, debts had accumulated to a large amount. These had been paid off. The son's life insurance of $600 was applied, $400 evidently in the purchase of the adjoining lot, and $200 in payment on the house. This made the aggregate payments on the house $500, with one payment of $25. The wife stated over her own signature that the husband was paying her but $10 per week, and the husband that he was earning but $20 per week. In fact, he was paying her $20 per week, and his earnings for six weeks immediately preceding the death of James were upwards of $40 per weck, excepting for two weeks, when they were $39.96 and $39.09 per week. He also testified that in the winter he could not work, while the payroll shows no lessening of his earning power for the winter months. We think this is not a family for whose benefit the Workmen's Compensation Law (Consol. Laws, c. 67) was enacted. The award must be reversed, and the claim dismissed. All concur. SUPREME COURT OF NEW YORK. APPELLATE DIVISION, THIRD DEPARTMENT. BAILEY V. COLUMBIAN ROPE CO. et al.* 1. MASTER AND SERVANT-WORKMEN'S COMPENSATION COMMUTATION. State Industrial Commission cannot, under Workmen's Compensation Law, § 27, direct payment to state insurance fund of present value of future installments of compensation awarded to dependent mother of deceased employee, commuted on the basis that such an award is of value equal to a life award, in view of section 16, subd. 4, providing that award to dependent mother is only payable during dependency. (For other cases, see Master and Servant, Dec. Dig. § 386[4].) 2. MASTER AND SERVANT - WORKMEN'S COMPENSATION — COMMUTATION. The basis for commutation fixed by Laws 1917, c. 705, providing that commutations under Workmen's Compensation Law, § 27, shall be upon the basis of the Survivorship Annuitants' Table of Mortality and the Remarriage Tables of the Dutch Royal Insurance Institution, would not apply to an award to a mother during her dependency. (For other cases. see Master and Servant. Dec. Dig. § 386[4].) Appeal from State Industrial Commission. Proceeding by Edith Bailey, on behalf of herself, brother, and sister of Harry Bailey, deceased, for compensation under the Workmen's Compensation Law, against the Columbian Rope Company, employer, and the American Mutual Liability Insurance Company, insurance carrier. From a decision of the State Industrial Commission, directing payment to the State Insurance Fund, under section 27 of the Workmen's Compensation Law, of the present value of future installments of compensation awarded to the dependent mother of said deceased, the employer and insurance carrier appeal. Reversed. Argued before John M. Kellogg, P. J., and Lyon, Woodward, Cochrane, and Henry T. Kellogg, JJ. Jeremiah F. Connor, of New York City, for appellants. Merton E. Lewis, Atty. Gen., and Robert W. Bonynge, of New York City (E. C. Aiken, of Albany of counsel), for respondent State Industrial Commission. JOHN M. KELLOGG, P. J. By subdivision 4 of section 16 of the Workmen's Compensation Law (Consol. Laws, c. 67), an award to a dependent mother is only payable during her dependency. [1] In Adams v. New York, Ontario & Western R. R. Co., 175 App. Div. 714, 161 N. Y. Supp. 919, and 220 N. Y. 579, 114 N. E. 1046, it was held that the commission could not commute future payments directed to be made to a widow during widowhood. After that decision it was pro * Decision rendered, Nov. 13, 1918. 172 N. Y. Supp. 566. vided, by chapter 705 of the Laws of 1917, that commutations under section 27 shall be upon the basis of the Survivorship Annuitants' Table of Mortality and the Remarriage Tables of the Dutch Royal Insurance Institution. That amendment was intended to permit the commutation of an award payable to a widow during widowhood, and to fix a basis for such commutation. But that basis would not apply to an award during dependency. Neither would a life table furnish any basis for such commutation. [2] It is evident that the commission treated the award in this case as one payable during life, but by subdivision 4 of section 16 of the Workmen's Compensation Law it continues only during dependency. The commission cannot determine that such an award is of value equal to a life award and compute it on that basis. The appeal, therefore, is governed by the Adams Case. The decision should be reversed. All concur. SUPREME COURT OF NEW YORK. BALK QUEEN CITY DAIRY CO. et al.* MASTER AND SERVANT-WORKMEN'S COMPENSATION LAW -HAZARDOUS EMPLOYMENT "HAZARDOUS OCCUPA TION." A superintendent of wholesale dairy route, who left employer's place of business to instruct a new driver, traveling by street railway, and who, on alighting from car, was killed by an automobile, was not at such time engaged in a "hazardous" occupation, within Workmen's Compensatoin Law, or in service of an employer whose principal business was hazardous. (For other cases, see Master and Servant, Dec. Dig. § 361.) (For other definitions, see Words and Phrases, First and Second Series, Hazardous.) Appeal from State Industrial Commission. Proceeding under the Workmen's Compensation Law (Consol. Laws, c. 67) by Estelle M. Balk to obtain compensation for the death of Leo P. Balk, opposed by the Queen City Dairy Company, employer, and the AmeriMutual Compensation Insurance Company, insurer. Compensation was awarded by the State Industrial Commission, and the employer and insurer appeal. Award reversed, and claim dismissed. can 1 Argued before John M. Kellogg, P. J., and Lyon, Woodward, Cochrane, and Henry T. Kellogg, JJ. * Decision rendered, Nov. 13, 1918. 172 N. Y. Supp. 471. Jeremiah F. Connor, of New York City, for appellants. Merton E. Lewis, Atty. Gen. (E. C. Aiken, Deputy Atty. Gen., of counsel), for respondent. Robert W. Bonynge, of New York City, for State Industrial Commission. LYON, J. The deceased, Leo P. Balk, was employed by the Queen City Dairy Company as the superintendent of its wholesale routes. On October 20, 1916, he left his employer's place of business to go upon one of the routes, where there was a new driver, in order to familiarize the driver with the route. In order to reach the route, he was required to travel by street railroad car. In getting off the car, a Ford automobile struck him in the left hip and ran him against a telephone pole, and he sustained injuries which resulted in his death, Novemebr 2, 1916. In so The award must be reversed, for the reason that Leo P. Balk was not at the time engaged in a hazardous occupation. He was not in any way engaged in operating a wagon. Glatzl v. Stumpp, 220 N. Y. 71, 114 N. E. 1053. He was merely alighting from a street railway car. doing he met with the accident which resulted in his death. He was not in the service of an employer whose principal business was carrying on or conducting a hazardous business. The award must be reversed, and the case dismissed. All concur. SUPREME COURT OF NEW YORK. CIMMINO V. JOHN T. CLARK & SON et al.* 1. ADMIRALTY—JURISDICTION-INJURY TO STEVEDORE. The work of loading and unloading ships is maritime, as regards jurisdiction of claim for personal injury therein. (For other cases, see Admiralty, Dec. Dig. § 20.) 2. ADMIRALTY-WROKMEN'S COMPENSATION ACT-INJURY TO STEVEDORE-ADMIRALTY JURISDICTION. While, when enacted, Workmen's Compensation Law, so far as making it applicable to longshore work in loading and unloading cargoes, was unconstitutional, as an invasion of admiralty jurisdiction, it became effective in that respect, without re-enactment, when by Act Cong. Oct. 6, 1917, § 2, amending Judicial Code, §§ 24, 256 (U. S. Comp. St. 1916, §§ 991[1]-991[25], 1233), recourse to rights and remedies under state Workmen's Compensation Law was permitted. (For other cases, see Admiralty, Dec. Dig. § 20.) * Decision rendered, Nov. 13, 1918. 172 N. Y. Supp. 478. |