Claim of Walz v. Holbrook, Cabot & Rollins Corp., 155 N.Y.S. 703

Claim of Walz v. Holbrook, Cabot & Rollins Corp.

155 N.Y.S. 703 | N.Y. App. Div. | 1915

Lyon, J.:

The principal question presented by this appeal is the right of Henrietta L. Walz, the sister of the deceased, to the award made in her favor by the Workmen’s Compensation Commission.

Charles L. Walz met an accidental death while engaged in a.hazardous occupation as an employee of the appellant. He was twenty-three years of age and unmarried. He had always lived in his father’s family, the other members of which at the time of his death were his father, mother, sister and a younger *8brother. The father was sixty years of age, a carpenter by trade, but so afflicted with rheumatism as to be able to do little work. His earnings, which were very small, he turned over to his wife to be used toward the maintenance of the family. The sister was a delicate schoolgirl, fifteen years of age. The brother was about nineteen years old and earning eight or nine dollars a week, out of which he paid four or five dollars to his mother for his board. The house was owned by the mother, who was the housekeeper and managed the financial affairs of the family. The value of the house was not given, but it was assessed for two thousand six hundred dollars and mortgaged for two thousand dollars. The weekly wage received by the deceased was twelve dollars and ninety-eight cents. Of this sum he voluntarily paid into the hands of his mother each week to assist in maintaining the family from eight to ten dollars, usually the latter sum. These contributions, together with the rental received from a married daughter who occupied four rooms on the second floor, the amount of which was not stated, seems to have constituted the family income. The amount was evidently meager to meet the necessities to which it had to be applied, as the mother stated that it had been no small matter for her to meet the interest on the mortgage. The girl earned nothing, and had no independent means of support. This fund seems to have been the only moneys out of which shelter, board and clothing were furnished her. That the contributions of the deceased were in excess of the cost of his maintenance in the family is apparent from the fact that the family was to a considerable extent dependent upon such contributions for their maintenance and support.

We think, in view of these facts, that the sister, as well as the father and mother, was a dependent of the deceased within the intent of the statute. The award made to the sister was one dollar and ninety-five cents per week until she shall arrive at the age of eighteen years. The awards to the father, and mother were each also fifteen per cent of the weekly wage of the deceased, but were without limitation as to time. This was in accordance with the 'Workmen’s Compensation Law (Consol. Laws, chap. 67 [Laws of 1914, chap. 41], § 16, subd. 4, as amd. by Laws of 1914, chap. 316). That the father and *9mother were dependents, we do not understand to he seriously questioned. The appellant contends, however, that the sister was not a dependent within the meaning of the statute, for the reasons that the moneys for her support were not paid directly to her individually by the deceased, and that her parents were legally chargeable with such support. If dependent upon the moneys contributed to her support by the deceased, such dependency was not affected by the fact that the moneys were so applied by a person to whom they had been paid by the deceased for that purpose. Nor does the statute limit the right to an award to those dependents who had the legal right to compel the deceased to furnish them support, but it applies as well to cases where the person was dependent for support upon the voluntary contributions of the deceased. There is no merit in appellant’s contention that by reason of the parents being legally chargeable with the support of the daughter, the award to them must be deemed to include any benefit to which she might otherwise be entitled, and hence that an award to her was granting double compensation.

As well might it be claimed that making an award to the mother constituted double compensation, and that her right to death benefits was merged in his, by reason of the legal liability of the father for her support. Section 16, subdivision 4, of the Workmen’s Compensation Law (as amd. supra) expressly provided for an award to each as follows: “4. * * * For the support of grandchildren or brothers and sisters under the age of eighteen years, if dependent upon the deceased at the time of the accident, fifteen per centum of such wages for the support of each such person until of the age of eighteen years; and for the support of each parent, or grandparent, of the deceased if dependent upon him at the time of the accident, fifteen per centum of such wages during such dependency. * * * ” The statute plainly intended that the award to each person should be for the support of such person. It is made exempt from all claims of creditors and from levy, execution, attachment or other remedy for the recovery and collection of a debt, and this exemption may not be waived. (Workmen’s Compensation Law, § 33.) The sister was clearly dependent upon the deceased to the extent that his contributions were *10necessarily used for her support. The question of dependency is one of fact. The statute does not require that a person shall he wholly dependent in order to be entitled to the death benefit, and the fact that the sister was in part dependent for her support from sources other than the contributions of the deceased, will not deprive her of the benefit of the statute. Actual partial dependency of a person bearing one of the several relationships specified in the statute, will suffice.

We think the action of the Commission in awarding compensation to the father, mother and sister of the deceased was right and should be affirmed.

Award unanimously affirmed.