191 N.E. 15 | NY | 1934
Louis Babb died as the result of accidental injuries arising out of and in the course of his employment. He was unmarried. A mother residing in Canada and two brothers and two sisters under the age of eighteen years were dependent upon him. The mother filed claims in behalf of herself and her four children. Then she began an action as administratrix of the decedent to recover from third parties damages for his death. The action was settled for the sum of $4,800 without *360 the consent of the employer or carrier. For that reason the claim of the mother was not allowed and no award has been made to her. The decedent's brothers and sisters were not entitled to any part of the recovery or settlement in the third-party action. Each of them has received an award of fifteen per cent of the decedent's wages.
Alien dependents, residents of Canada, receive the same benefits as dependents who are residents of the United States. (Workmen's Compensation Law [Cons. Laws, ch. 67], § 17; Matterof Mallory v. American Bridge Company,
The Workmen's Compensation Law covers the entire field of remedy against an employer for industrial accident. (Shanahan
v. Monarch Engineering Co.,
Dependents are entitled to receive compensation in the amount fixed by the statute, though the employer be free from fault; but even though the employer's fault be grievous and the loss suffered by a particular dependent far greater than the compensation provided by the statute, no dependent is entitled to receive from the employer compensation beyond the statutory provision, and in no event may the aggregate amount of compensation payable to all the dependents exceed sixty-six and two-thirds per centum of the wages of the decedent. That percentage fixes the limit of the obligation of the employer and carrier, and also the aggregate amount "payable" to dependents. When a deceased employee has left a number of dependents, there must at times be reduction in the amount of compensation payable to each, or elimination of compensation payable to some classes of dependents, in order to bring the total compensation payable under the statute within the limits of the carrier's obligation. *362
The remedy against the employer for industrial accidents leaves untouched any right of action which the next of kin of a deceased employee might have against third parties for wrongfully causing his death, but where there is a recovery in such actions, the statute has provided the "extent to which the shares that belonged to the dependents should be applied in reduction of the burdens that were placed upon the carrier." (Matter of Zirpola
v. Casselman, Inc.,
The amount payable to dependents under the statute can in no event exceed two-thirds of the amount of the wages of the deceased employee. That limitation is upon the "aggregate amountpayable" under the statute. It measures not merely the obligation of the carrier to pay but the right of dependents to receive. The dependents are classified under the statute. The amounts payable to surviving wife or dependent husband and dependent children may exceed the limitation. Then no amount is payable to other surviving dependents. The burden of the carrier's obligation to dependents may be reduced by rights of subrogation conferred by section
So we held in Matter of Plouff v. Port Henry L., H. P.Co. (
The Appellate Division did not decide otherwise; but it held that the right to compensation of the dependent brothers and sisters under subdivision 4 of section 16 of the statute was superior to the right to compensation of the dependent mother. We cannot find in the language of the subdivision any indication that the Legislature had such intention. Dependent brothers and sisters and grandchildren are, it is true, named first, but they are named as members of one group with dependent parents and grandparents, and larger amounts are payable to the latter. In express terms the statute has placed a limitation upon the "aggregate amount payable under this subdivision," and we find in that language no implication that there should be discrimination and priority in the payment of compensation among those dependents to whom compensation is payable under that subdivision. The "aggregate amount payable" under subdivision 4 is in this case eighty-five per centum of the wages of the deceased employee. Each amount must be reduced so that the aggregate shall not exceed sixty-six and two-thirds per centum. The compensation payable to each brother and sister must be accordingly diminished. Each dependent brother and sister is presently entitled to an award of 11.96 per centum of the decedent's wages. *364
The order of the Appellate Division and the award of the State Industrial Board should be reversed and the matter remitted to the State Industrial Board to fix the award in accordance with this opinion.
POUND, Ch. J., CRANE, O'BRIEN, HUBBS and CROUCH, JJ., concur.
Ordered accordingly.