Claim of Profeta v. Retsof Mining Co.

188 A.D. 383 | N.Y. App. Div. | 1919

Woodward, J.:

Claimants’ intestate was employed by the Retsof Mining Company and was accidentally injured, in the performance of his duties, on the 29th day of January, 1918. He died on January 31, 1918. The only question involved on this appeal is whether his father and mother were dependent upon him, and the award which has been made must depend upon the evidence tending to show that the decedent had “ supported, either wholly or in part, for the period of one year prior to the date of the accident,” the claimants. (Workmen’s Compensation Law [Consol. Laws, chap. 67, Laws of 1914, chap. 41], § 17, as amd. by Laws of 1916, chap. 622). The question of support, in whole or in part, for the year is the controlling consideration (Casella v. McCormick, 180 App. Div. 94, 95), and it has been held that “ the mere fact that a father receives money from a son and expends it is not alone sufficient to establish dependency." (Birmingham v. Westinghouse Electric & Mfg. Co., 180 App. Div. 48, 51.)

The record before us consists of papers alleged to have been prepared and subscribed in Italy, open to the same objections which exist in Pifumer v. Rheinstein & Haas, Inc. (187 App. Div. 821), and nowhere in the case does it appear, from any competent evidence, that the decedent “ supported, either wholly or in part, for the period of one year prior to the date of the accident," the claimants in this case.

The award appealed from should be reversed and the proceeding remitted to the State Industrial Commission.

All concurred, except John M. Kellogg, P. J., dissenting.

Award reversed and matter remitted to the State Industrial Commission.