21 A.D.2d 957 | N.Y. App. Div. | 1964
Memorandum by the Court. Claimant, describing himself as a “sanitation man” employed by the Department of Sanitation of respondent City of New York, and as injured while working as a " deckhand on scow ”, applied for and received workmen’s compensation, but now appeals from a decision denying his application to set aside the awards, asserting that the board was without jurisdiction to make them and that he and his employer could not waive his rights under the Jones Act (U. S. Code, tit. 46, § 688) whereby a seaman injured in the course of his employment "may, at his election, maintain an action for damages at law”. Respondent employer contends that the awards were properly made under section 113 of the Workmen’s Compensation Law providing that awards of compensation “may be made by the board in respect of injuries subject to the admiralty or other federal laws in case the claimant, the employer and the insurance carrier waive their admiralty or interstate commerce rights and remedies”. Claimant stated that he worked on boats and on scows, cranes and other floating equipment “maybe two or three days a week” and that the rest of the time he worked with boilermakers, on land. On the day of the accident he was assigned to painting work. He was injured, as the result of a collision, when about to throw a line to assist in moving a scow which had caught fire. Citing Matter of Meachem v. New York Cent. R. R. Co. (8 N Y 2d 293), the board based its determination of jurisdiction on its findings that “ the parties have utilized the Board’s machinery at a series of hearings resulting in a series of awards as well as payment and acceptance of these awards.” These facts are not disputed. Additionally, claimant, having filed his claim on