250 A.D. 258 | N.Y. App. Div. | 1937
The employer and insurance carrier have appealed from a determination of the State Industrial Board awarding death benefits in the sum of $5,936.38 to Caterina Carofiglio Battalico, the widow of Michael Battalico, the deceased workman, and also from a like award of $6,826.06 to four acknowledged illegitimate children of the deceased.'
The record in this case tells a rather unusual and somewhat tragic story. Michael Battalico was born at the city of Bari, Italy, on April 16, 1894. There he wooed and wed Caterina Carofiglio. Their marriage occurred on February 10, 1921. A child, who survived but a few months, was born to them in December of the same year. Sometime in 1923 Battalico, for reasons unknown, emigrated to the United States and located in the city of New York. In that city on March 29, 1926, before a deputy clerk, while his marriage to Caterina was in full force and effect, he went through a form of marriage with Marie Giannone. This was subsequently followed by a religious ceremony by a clergyman in the church of which they were members. Although the appellants contend otherwise, there is no serious doubt about the fact that the man who pretended to marry Marie was then the faithless husband of Caterina. Marie, however, was entirely innocent of the deception perpetrated upon her. As a result of the bigamous union four children were born.
Battalico was employed as a laborer by appellant Knickerbocker Fireproofing Company, and on October 15, 1931, while engaged in the regular course of his employment, he sustained fatal injuries which resulted in his death on the same day. Thereafter Marie, on her own behalf, and on behalf of her minor children, filed with the Department of Labor a notice of election to sue Thompson-Starrett Company and Taylor Hydrolithic Company, third parties, through whose negligence it was claimed Battalico’s death was caused. On the assumption that she was the genuine widow of deceased, Marie was awarded letters of administration on his estate by the Surrogate’s Court of New York county. As such administratrix,
After the adjustment of the third-party action, the Industrial Board made an award of deficiency compensation to Marie, to become effective in the future.
After Battalico’s disappearance the deserted wife patiently waited in her lonely Italian home for the message that never came from the man to whom she plighted her troth. She never knew that another had usurped her place until she received the announcement of her husband’s death. Upon making this discovery, and within the statutory time, Caterina, through the resident Italian Consul, duly filed her claim for compensation. This claim was' on file before the adjustment of the third-party action which Marie instituted. For some reason, difficult to understand, the Department of Labor and the insurance carrier failed to discover that conflicting claims by two women, each claiming to be the widow of the deceased, were filed. Somebody erred, and the blunder was not discovered until May, 1934. Hearings were then had, as a result of which the award for deficiency compensation to Marie was rescinded and the awards under review were made.
Appellants contend that Caterina’s only remedy is a proceeding in the Surrogate’s Court against Marie, as administratrix, and that the decree of that court, granting letters of administration, and its order permitting compromise of the third-party action, are not subject to collateral attack. We think otherwise.
Finally, appellants contend that in any event the award of compensation to the children of Marie and deceased must be vacated. This contention is likewise untenable.
The four children born to Marie and decedent were acknowledged by the latter, and consequently are dependents within the meaning of subdivision 11 of section 2 of the Workmen’s Compensation Law. A cause of action for injuries resulting in death, prosecuted by an administratrix against a third party is for the benefit, not of dependents as defined by the Workmen’s Compensation Law, but of next of kin as defined by sections 133 and 134 of the Decedent Estate Law. The two classes are not invariably nor perhaps com
The awards should be affirmed, with costs to the State Industrial Board against appellants.
Hill, P. J., Rhodes and Crapser, JJ., concur; McNamee, J., concurs in the result.
Awards affirmed, with costs to the State Industrial Board.