182 A.D. 438 | N.Y. App. Div. | 1918
Lead Opinion
■The mother and father of the claimant gave her to the grandparents when she was a few days old and they have maintained her for over fifteen years as their child. There was some writing made giving the child to them, the terms of which do not appear. Apparently, in a separation action between the father and mother, they gave up their rights to
All concurred, except Cochrane, J., dissenting in opinion, in which Lyon, J., concurred.
Dissenting Opinion
Cornelius Yeople died as the result of injuries received, August 16, 1916, and an award has been made to his widow and to Jennie M. Yeople, as an alleged dependent granddaughter. No complaint' is made of the award to the widow, but the sole question is whether the granddaughter was dependent on the deceased..
She was born October 22, 1901, her father being a son of the deceased. When she was four weeks old she was taken to the home of her grandparents where she has since resided; and has received her entire support from them. The cause of this unusual family disruption was an estrangement between her father and mother. An action for separation was instituted by the mother and alimony was paid her by her husband. After about a year and a half of separation, the parents made
The statute. (Workmen’s Compensation Law [Consol. Laws, chap. 67; Laws of 1914, chap. 41], § 16, subd. 4, as amd. by Laws of 1916, chap. 622) requires that the question of dependency “ shall be determined as of the time of the accident.” In Birmingham v. Westinghouse Electric & Mfg. Co. (180 App. Div. 48) this court said in discussing a question of dependency: “ What occurred before or after the date of the accident is of no importance; it is what was the condition on that day.” In that case it was held that the findings of the Commission to the effect that a mother living with her husband was dependent on her son were without evidence in their support and an award in favor of the mother was reversed. It seems clear in the present case that the finding of dependency is absolutely unsupported by the evidence. In the case cited it was said: “No evidence is given to show that she [the mother] was dependent upon him [the son]; the most that can be said of the evidence is that it shows that -he contributed rather more than his share of the expenditures of a large family; but it does not show that if these contributions were withdrawn the claimant’s husband was not abundantly able to care for her out of his own earnings at the time of the accident. He was not obliged to support the other members of his household; none of them had a legal claim upon him; his duty was to support his wife, and the undisputed facts show that he was earning enough to do this equally as well as
The award so far as appealed from should be reversed, and the claim dismissed.
-Lyon, J., concurred.
Award affirmed.