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Appeal from State Industrial Commission.

Proceeding under the Workmen's Compensation Act by William C. Vincent, claimant, against Taylor Bros., employers, and the London Guarantee & Accident Company, Ltd., insurance carrier. From an award of the state Industrial Commission the employers and insurance carrier appeal. Award reversed and matter remitted to Commission.

Argued before Kellogg, P. J., and Lyon, Woodward, Cochrane, and Sewell, JJ.

William Butler, of New York City, for Appellants.

Merton E. Lewis, Atty. Gen. (E. C. Aiken, Deputy Atty. Gen., of counsel), for Respondent.

sion.

Robert W. Bonynge, of New York City, for State Industrial Commis

LYON, J.

In September, 1916, the claimant suffered the loss of his right hand while engaged in feeding bundles of rye into a combined thresher and cleaner. This machine was operated by an oil engine, connected with it by means of a belt, and the threshing was done at a certain price per bushel and the board of the helpers. The award was based upon the employers being engaged in the business of milling, and likewise in the operation of a vehicle, in connection with the business of threshing rye and other grain, with a machine mounted on axles and wheels and drawn from farm to farm, where the work was done. So far as appears, the sole duty of the claimant to his employers was feeding the grain-bearing bunddles into the machine.

[1, 2]. The award is challenged by the employers and the insurance carrier upon the ground that the employment of the claimant was neither that of milling, within the meaning of that term as used in group 29, nor that of operating a vehicle, under group 41, of the Workmen's Compensation Law. The machine was drawn by horses to the farm where the accident occured the day preceding the injury. While being so drawn it was a vehicle. White vs. Loades, 178 App. Div. 236, 164 N. Y. Supp. 1023. We think, however, that it cannot be considered a vehicle after the horses had been detached and it was being operated as a stationary machine. Wilson vs. Dorflinger & Sons, 218 N. Y. 84, 112 N. E. 567, Ann. Cas. 1917D, 38; Holtz vs. Greenhut & Co., 175 App. Div. 878, 162 N. Y. Supp. 359.

[3] The appellant's contention that the claimant, while feeding bundles into the machine, was a farm laborer, and hence not entitled to compensation, cannot be sustained. White vs. Loades, supra. It is not claimed that the claimant had anything to do with carrying on the farm where the accident occured.

[4] As to the claimant being employed in milling, the only evidence of that fact is to be found in the employers' first report of injury, in which the question, "Business (goods produced, work done, or kind of trade or transportation)?" was answered, "Milling business." Apparently, in making that answer, the appellants

treated operating the thresher and cleaner as being engaged in the milling business. There is nothing whatever in the evidence indicating that the employers were in fact millers, or that they had any interest whatever in the grain, or in threshing it, beyond merely separating it from the straw at a certain price per bushel. If such were the conceded fact, the award should be reversed, and the claim dismissed.

However, the stipulation settling the case simply recites that "the foregoing case contains all the material evidence given upon the hearing." Whether facts may have been disclosed by the investigation of the Commission, which do not appear in the record, but which influenced the deputy commissioner, before whom the proofs were heard, to make the award-for instance, that the employers were in fact engaged in the milling business and that the threshing was incidental to their acquiring the grain for such business--does not appear, nor has the Commission so found. In view of the uncertainty as to the record containing all the evidence upon which the Commission acted, which in our view of the case might be material, and owing to the lack of evidence as to the claimant being engaged in a business incidental to or connected with milling, and also in view of the serious nature of the claimant's injury, we think the award should be reversed, and the claim sent back to the Commission for further hearing and finding.

However, should the claimant elect to stipulate that the employers' alleged interest and conduct of the milling business was confined solely to the operation of the thresher and cleaner, the award should be reversed, and the claim dismissed; otherwise, the claim should be remitted to the Commission for its further action. All concur, except Woodward, J., who dissents.

SUPREME COURT OF NEW YORK.
APPELLATE DIVISION, THIRD DEPARTMENT.

MORAN ET al.

VS.

RODGERS & HAGERTY, INC.*

1. WORKMEN'S COMPENSATION ACT-AFFIDAVIT.

Workmen's Compensation Act (Consol. Laws, c. 67) § 68, providing that commission shall not be bound by common-law or statutory rules of evidence, "except as provided by this chapter," and that the commission might make such investigation before hearing as to ascertain the substan* Decision rendered, Dec. 28, 1917. 168 N. Y. Supp. 410.

tial rights of the parties, is not limited by section 72, providing that the commission may cause depositions of witnesses residing within and without the state to be taken as in civil actions; and hence the commission might receive affidavits of the father and mother of the deceased, residing in Ireland and taken before a commissioner of oaths of the state of New York, as bearing upon their dependency.

2. WORKMEN'S COMPENSATION ACT-AWARD-DEPENDENCY Workmen's Compensation Act, § 16, subd. 4, providing that all questions of dependency shall be determined as of the time of the accident, was not changed by the amendatory act (Laws 1916, c. 622); and under General Construction Law (Consol. Laws, c. 22) § 93, relating to the effect of repeal, by section 110 made applicable to the Compensation Law, the liability to pay compensation was governed by the statute in force at the time of the accident, and an award to the surviving father and mother proving partial dependency was proper.

Appeal from State Industrial Commission.

In the matter of the claim of Bridget Moran and Peter Moran for compensation for the death of their son, Peter Moran, employee, opposed by Rodgers & Hagerty, Incorporated, employer. From an award of the State Industrial Commission, the employer appeals. Affirmed.

Argued before Kellogg, P. J., and Lyon, Woodward, Cochrane, and Sewell, JJ.

Jeremiah F. Connor, of New York City, for Appellant.

William C. Foster, of New York City, for Respondents Moran. 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.

LYON, J.

The death of Peter Moran, which occured March 21, 1916, as the result of injuries sustained the previous day in the borough of Brooklyn, city of New York, was compensatable under the Workmen's Compensation Law, in case the evidence established the dependency of one or both of the parents of the deceased.

The father and mother of the deceased, aged respectively 56 -and 48 years, with 7 of their 12 children, resided on 10 acres of rented land in the county of Leitrim, Ireland. Six of the 12 children were between 6 and 18 years of age and attended school. The father had the use of only one hand; the other being paralyzed. The oldest son, who was 21 years of age, spent all his time at work on the place. Following taking the testimony of 2 of the brothers of the deceased, residing in this country, as to the dependency of the parents and the contributions of the deceased to their support, the Commission suspended the hearing, pending the production of further proof upon those subjects. There was thereafter obtained and submitted to the Commission, upon notice to the appellant of the hearing, the affidavits of the father, mother, a groceryman, and a hardware merchant taken in Ireland before a commissioner of oaths of the state of New York. The evidence thus amply established the partial dependency of the claimants for their support, during more than the year preceding the son's death, upon money sent by him to them.

[1] The employer makes the claim upon this appeal for the first time that these affidavits were not properly receivable as evidence, for the reason that section 68 of the Workmen's Compensation Law, providing that the Commission shall not be bound by common-law or stautory rules of evidence, "except as provided by this chapter," and that the Commission should be authorized to make such investigations or inquiry, or conduct such hearing, in such manner as to ascertain the substantial rights of the parties, is limited by the provisions of section 72, entitled "Depositions," which provides:

"The commission may cause depositions of witnesses residing within or without the state to be taken in the manner prescribed by law for like depositions in civil actions in the Supreme Court." If the contention of the employer is correct, and the section was intended to be mandatory, no affidavit, taken either within or without the state, is properly admissible under objection. Section 72 was plainly intended to be permissive only, and to furnish a further means, within the discretion of the Commission, of obtaining evidence for use before the Commission, and not to in any way limit or restrict the authority of the Commission under section 68. [2] The present case is distinguishable from that of Casella & Babino vs. McCormick, 167 N. Y. Supp. 564, handed down at the November, 1917, term, in that the injury in that case occurred subsequent to June 1, 1916, the date when the amendment by chapter 622, Laws of 1916, took effect. The accident in the present case having occurred prior to June 1, 1916, the award of compensation is governed by the statute then in force, rather than by the statute in force at the time the award was made; the last sentence of subdivision 4 of section 16 providing::

"All questions of dependency shall be determined as of the time of the accident."

This provision was not changed by the amendatory act of 1916; hence, an award of compensation to both the father and mother being proper at the time the accident occurred, the award of 15 per cent. to each was proper. Furthermore, under section 93 of the General Construction Law (Consol. Laws, c. 22; Laws 1909, c. 27), which by section 110 of that law is made applicable, the enforcement of the right and liability to pay compensation was governed by the statute in force at the time of the accident. The award should be affirmed. All concur.

SUPREME COURT OF NEW YORK.
APPELLATE DIVISION, THIRD DEPARTMENT.

IN RE GIBBONS.*

1. WORKMEN'S COMPENSATION-EVIDENCE.

Evidence held to establish accidental injury to servant within the Workmen's Compensation Act (Consol. Laws, c. 67).

2. WORKMEN'S COMPENSATION-NOTICE TO EMPLOYERSUFFICIENCY.

Where notice of injury was not given employer within ten days, fact that the superintendent of the factory heard of the accident within ten days did not excuse failure to give notice.

3. WORKMEN'S COMPENSATION ACT-NOTICE TO EMPLOYER -SUFFICIENCY.

Under Workmen's Compensation Act, § 18, requiring notice of injury within ten days after disability, notice of injury within thirty days after death of employee, who died within ten days of disability, but more than ten days after the injury was sufficient.

Appeal from State Industrial Commission.

Application by Mary Gibbons for workmen's compensation, opposed by Marx & Rawolle, Incorporated, employer, and the Ætna Life Insurance Company, insurer. From an award in favor of the complainant, the employer and the insurance carrier appeal. Affirmed.

Argued before Kellogg, P. J., and Lyon, Woodward, Cochrane, and Sewell, JJ.

James B. Henney, of New York City (William H. Foster, of Syracuse, of counsel), for Appellants.

Merton E. Lewis, Atty. Gen. (E. C. Aiken, Deputy Atty. Gen., of counsel), for State Industrial Commission.

COCHRANE, J.

The finding of the Commission is that Gibbons, the husband of the claimant, while lifting a heavy weight in the course of his employment on March 21, 1917, "suffered a strain which caused a dilatation of the heart muscle, and resulted in acute cardiac dilatation, which caused his death on April 1, 1917."

[1] It is urged by the appellants that there is no evidence that he received an injury or strain. A fellow workman of Gibbons testified in effect that. after lifting the heavy weight, he stopped lifting others, and asked that some one be substituted in his place to do the rest of the lifting, and that he walked up and down the platform where he was at work as if in pain. The witness asked him, "What's the matter?" and he said he "had a pain." On the following day he went to a physician, who diagnosed his trouble as heart difficulty, and prescribed for him accordingly until he * Decision rendered, Dec. 28, 1917. 168 N. Y. Supp. 412.

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