| N.Y. App. Div. | Mar 15, 1936
The employer and carrier appeal from an award against them dated November 6, 1935, upon the ground that it should have been made against the special fund under section 25-a of the Workmen’s Compensation Law. The injury was received November 6,1925, and the last payment of compensation made before September 3, 1929. On the last-mentioned date the referee announced at the end of the hearing, “ Closed without prejudice until claimant wants to re-open his case.” The then Industrial Commissioner in a notice of decision, dated September 7, 1929, stated, “ Closed files without prejudice until claimant requests hearing.” On November 4, 1929, the Commissioner sent out a “ corrected notice of decision.” This, however, by its terms corrected the notice as to a hearing held on January 28, 1933. It did not change the September, 1929, decision or the notice thereof. The case was not open on April 24, 1933, and as the injury was received more than seven years, and the last payment of compensation was made more than three years before the date of the award, it should have been against the special fund. Award reversed, with costs against the State Industrial Board, and matter remitted to the Board to make an award under section 25-a of the Workmen’s Compensation Law. Hill, P. J., Rhodes, Bliss and Hefiernan, JJ., concur; Crapser, J., dissents.