187 A.D. 824 | N.Y. App. Div. | 1919
Mary Frey was a girl nineteen years of age, living at home with her parents, and. employed by McLoughlin Bros., Inc., in a hazardous employment. On the 10th of August, 1917, this girl drove a tack through one of her fingers, in the course of her employment, and one week later she died, and the
Of course the earnings of this minor child belonged to the father under the ordinary rules of law. They amounted to about eight dollars per week. She had been working about two years, and the mother says that the reason she was at work was because she was “ a big girl and there was no reason why she should sit around and do nothing and her father do all the work; she was a strong girl.” We find no evidence in the case that the mother depended on the earnings of this girl. Her husband was, at the time -of the accident (and this is the only time that the statute considers — Birmingham v. Westinghouse Electric & Mfg. Co., 180 App. Div. 48, 50, and authority there cited), drawing a salary of twenty dollars per week, and there is no evidence from which it can be made to appear that this did not afford the support of these two people. There is testimony that the daughter turned all of her wages — eight dollars per week — over to her mother, and that this was necessary to the support of the family, but this must be taken in connection with the fact that the daughter constituted one-third of the family, and presumptively it required as much for her support as for any one of them, and this was less than, one-third of the income of the family from wages. Moreover, it appears that the father owned a four-family frame house of the assessed valuation of $4,500, on which there was a mortgage of $2,500, and that they had $1,000 in bank. The house was rented, and the testimony shows that the income was sufficient to take care of the interest and taxes, and there is evidence that the family at the time of the death of the daughter was able to save $2 per week, and that after the death of the daughter they were unable to save anything. It does not, however, show that the mother was dependent upon the income of the daughter. “ The statute plainly intended that the award to each person should be for the support of such person ”
The award should be reversed and the claim dismissed.
All concurred.
Award reversed and claim dismissed.