180 A.D. 48 | N.Y. App. Div. | 1917
Harold Birmingham received fatal injuries on the 10th day of June, 1916, while employed by the Westinghouse Electric and Manufacturing Company in New York city. He was earning average weekly wages of nineteen dollars and sixty-one cents, and there is no complaint over the award of compensation to his widow. The question presented upon this appeal is whether his mother, aged forty-two years, with a husband in good physical condition, earning something over twenty-one dollars per week when employed, was a dependent of the deceased under the provisions of subdivision 4 of section 16 of the Workmen’s Compensation Law (Consol. Laws, chap. 67 [Laws of 1914, chap. 41], as amd. by Laws of 1914, chap. 316, and Laws of 1916, chap. 622).
The statute, as amended by chapter 316 of the Laws of 1914 and chapter 622 of the Laws of 1916, specially provides that all questions of dependency shall be determined as of the time of the accident, so that in the consideration of this case we are to exclude from view all of
Virginia Birmingham, the mother, claimant, after having testified at one hearing, was recalled and went over the entire matter a second time, with full opportunity to adjust herself to the probable requirements of the Commission. She testified that she was the mother of Harold Birmingham, who died on the 15th day of June, 1916, as the result of an accident in the Westinghouse plant a day or two before; that she had a husband living, whose wages were, at the time, forty-four cents an hour, although he had been paid forty-five cents an hour prior to Harold’s death; that the husband, if he worked a full week, got something over twenty-one dollars, and that he gave' to the claimant nineteen dollars; that he received these wages during' the year prior to the' death of Harold; that he was idle for an aggregate of about three months in the year before her son’s death, and that he gave her nineteen dollars each week that he worked. The evidence developed that the Birmingham family consisted of the claimant and her husband, a married daughter, apparently living apart from her husband, and contributing nothing to the family; the mother of the claimant and a nephew, twelve years of age, and Harold Birmingham and his wife, and that Harold Birmingham contributed to his mother from twelve to seventeen dollars per week, and that both he and his wife
It seems to us that while it is true that the statute makes the findings of fact made by the Commission conclusive where there is any evidence to support the finding (Matter of Rhyner v. Hueber Bldg. Co., 171 App. Div. 56, 57), it is necessary to show, not that a son, boarding with his wife at the home of his parents, has given his mother sums of money which would fairly compensate for the entertainment received, but that the mother stood in a position where such sums of money were necessary to her own support. “ The statute plainly intended that the award to each person should be for the support of such person ” (Matter of Walz v. Holbrook, Cabot & Rollins Corp., 170 App. Div. 6, 9), and not for the maintenance of such a family as the claimant might elect to collect around her, and to whom she owed no legal obligation.
The award to Virginia Birmingham should be reversed and her claim dismissed.
All concurred, except Kellogg, P. J., not voting.
Award reversed and claim dismissed.