| N.Y. App. Div. | Jan 17, 1940
This is an appeal from an award for deficiency death benefits in favor of the widow and minor child of the deceased employee. Decedent was employed as an engineer and machinist. It is conceded that he sustained an accident on June 26, 1931, arising out of and in the course of his employment and that the resultant injuries caused his death on September 12, 1931. Decedent was survived by his widow and minor child, Joseph O’Brien, and three other children over the age of eighteen years. The injuries which caused the death of decedent resulted from the negligence of a third party. On October 5, 1931, a claim for compensation was filed by the widow on behalf of herself and the minor child. On April 7, 1932, a notice of election to sue a third party was filed on behalf of the widow and her minor child. On June 11,1932, a second notice of election to sue was filed on behalf of the widow and the four surviving children. The widow, as administratrix, instituted an action against a third party and obtained a judgment in her favor of $10,899.03. The three adult children released their respective distributive shares in the estate of their father to the mother. The State Industrial Board credited the employer and insurance carrier against the widow’s compensation with the sum of $3,633.01, being a one-third part of the recovery. It is the contention of appellants that the widow should be charged with the entire amount which she received including the gifts made to her by the three children over eighteen shears of age. The State Industrial Board rejected this contention. Award unanimously affirmed, with costs to the State Industrial Board. Present — Hill, P. J., Crapser, Bliss, Heffernan and Foster, JJ.