| N.Y. App. Div. | Nov 4, 1960
Appeal from decision of the Workmen’s Compensation Board which found claimant to be widow of deceased employee. The marriage between the claimant and decedent took place in 1952 and the parties lived together until January, 1958, when the claimant separated from her husband because he would get drunk almost every weekend and come home and beat her. There was no decree or agreement as to the separation and albeit the decedent had sought a reconciliation, the claimant had refused to return and live with him. At the time of the compensation hearing the claimant was pregnant as the result of illicit relations with another man which had occurred during the lifetime of her husband. The board determined claimant had not abandoned her husband within the meaning of subdivision 1-a of section 16 of the law but found she was justified in separating from him. The pertinent part of the above section reads as follows: “ the term surviving wife shall be deemed to mean the legal wife of the deceased but shall not include a wife who has abandoned the deceased, and (3) the term abandoned shall be deemed to mean such an abandonment as would be sufficient under section eleven hundred sixty-one of the civil practice act to sustain a judgment of separation on that ground.” The board has factually determined that there was justification for the claimant leaving decedent and although it appears she did not intend to return to him, that there was no abandonment. The acceptance or rejection of this testimony goes to the credibility of the witness, which determination is solely within the province of the board. Whether there was an abandonment under the facts was likewise a question for the board and with its factual determination we will not interfere. It should be noted the appellants offered no evidence as to any of the factual issues. Decision and award unanimously affirmed, with costs to the Workmen’s Compensation Board.