221 A.D. 624 | N.Y. App. Div. | 1927
Death benefits awards were made to the widow and children of the deceased. On application of the widow the
Payment of the death benefits award was delayed about three years. The employee was killed March 30, 1923. Not until April 15, 1926, was any award paid; then the accumulated award was paid in the sum of $3,146.36. The widow is the mother of eight children. One child was born about one week after the employee’s death; the eldest child was sixteen years of age at that time and the widow thirty-five. The widow had great trouble in securing and keeping rented places. She was unable at times to pay her rent and her large family was a hindrance. She stated that, between the death of her husband and the payment of the accumulated award, she had borrowed from relatives and friends $1,450, and contracted debts for living expenses in the sum of $2,385, a total of $3,835, which she still owes.
Before the accumulated award was paid in 1926 she had made a contract to purchase a home for $13,050. Immediately after the payment of this award she closed this contract; she paid $3,000 of the award on the purchase price, assumed the payment of a $5,000 mortgage on the property, bearing interest at six per cent and due in three years, and she gave a second mortgage for $5,050, bearing six per cent interest and requiring quarterly payments of $150 each and payment of the whole amount in four years. This transaction was completed in June, 1926. Neither mortgage is in the record and we have no further evidence as to the terms of either.
An expert in real estate values in the neighborhood testified that, at the time .of the hearing, this property was worth $15,000, and that generally it was in good condition and arranged practically as a two-tenement house, there being kitchen facilities on the first and second floors. She made this application for commutation of the award to her in order that she might pay her indebtedness, repair and furnish the house and have a home for her children. In his memorandum of decision Mr. Cullen, a member of the Industrial Board, made this statement: “ The widow has purchased a home for herself and children at a cost of $13,050, of which amount $3,050 was paid in cash and there are first and second mortgages of $5,000 each on the property.” (The amount paid was in fact $3,000.) “ In addition she is in debt to the amount of $3,835 for rent and to tradespeople for food, clothing, etc. She desires to make necessary repairs, the cost of which is estimated at $200 and to buy furnishings at an estimated cost of $700. A married daughter rents the
There is a strong appeal in this record to sustain the conclusion reached by the Industrial Board; and, if there is reasonable assurance that the widow can carry out her plan and protect the property, the award should be allowed. We believe, however, that further evidence should be in the record before the action of the Industrial Board is approved. The first mortgage becomes due in three years. It is probable that, upon property of such value, she could procure an extension of this mortgage, either from the present mortgagee, or from some investor who would take over the mortgage. The second mortgage, however, requires a payment of $150 quarterly and of the whole sum in four years; also it probably contains a clause that, upon default in making any payment for a certain number of days, the whole amount of the mortgage shall, at the election of the mortgagee, become due and payable. It does not appear whether by the terms of the second mortgage an additional payment thereon could be made. To assure protection of the widow’s interest we think this bond and mortgage should be in the record.
To live and make required payments on this property the widow is relying largely upon the earnings of her son, now about seventeen years of age. He is a bricklayer’s helper; there is no proof that he has steady work; and yet, in computing her expected income, his earnings are calculated at $1,560 per year. The death benefits payable to the minor children amount at present to less than $10 per week. As each clpld becomes eighteen years of age, this amount
But, it is said that the creditors are pressing the widow for padment of her debts and that they threaten to procure judgment any sell the real estate. Unless there be some equity in the property above the two mortgages and the compensation money invested, we think that the creditors have no redress against the property; that the $3,000 of compensation money already put in the property and such further compensation money as she shall pay in are protected by the statute as above quoted. The statute should be
The evidence as it now stands does not support the finding that the commutation, with the proposed use of the funds, is in the interests of justice. The award should, therefore, be reversed and the claim remitted to take further proof and to give further protection to the interests of the widow.
Cochrane, P. J., McCann, Davis and Whitmyer, JJ., concur.
Award reversed and claim remitted to the State Industrial Board to take further proof, to give further protection to the interests of the widow, in accordance with the opinion.