204 A.D. 658 | N.Y. App. Div. | 1923
It was conceded upon the hearing by the attorney for° the appellants that the employer came under group 17 of section 2 of the Workmen’s Compensation Law (as amd. by Laws of 1917, chap. 705) as it existed at the time of the accident which was June 9, 1921. It was proved beyond cavil, both by report of the employer and by evidence, that John J. O’Rourke, the husband of the incompetent, was an engineer of this company, and operated the engine that was the motive power for the work of the employer.
First. Did the accident arise out of and in course of the employment?
Second. Was the award as made directed to be paid to a party entitled to receive the same?
As to the first: The injury was received at one-thirty p. m., at which time the deceased was at his place of duty, so that he was in the course of his employment; but the manager and treasurer says: “ He had been instructed not to go out there but for some reason I don’t know why, he went out.” There is no evidence in this record that any one told him not to go outside of the door of his engine room, or that this wood, which was thrown down and killed him, was to be thrown down into the yard at his engine room door. The Industrial Board was well within its province when it found, in effect, that he had not disobeyed instructions. Its finding in that regard was based upon a question of fact and we cannot disturb it. (Workmen’s Compensation Law, § 20, as amd. by Laws of 1919, chap. 629. See, also, Workmen’s Compensation Law of 1922, § 20.) The only remaining question is as to the party directed to receive the award, and with that is coupled the further objection that the Industrial Board did not obtain jurisdiction of the subject-matter because the notice of injury was made by the alleged committee. The statute permits any one to give the notice of injury as therein prescribed in behalf of the dependent, and the claim must be filed within one year. (Workmen’s Compensation Law, §§ 18, 28, as amd. by Laws of 1918, chap. 634.) The applicar tion for the appointment of a committee may be presented by any person. (Code Civ. Proc. §2323. As to authority of the committee to institute actions or special proceedings, see section 2340 of the
I advise affirmance of the award, with costs in favor of the State Industrial Board against the carrier.
Present — H. T. Kellogg, Acting P. J., Kiley, Van Kirk, Hinman and Hasbrouck, JJ.
Award unanimously affirmed, with costs in favor of the State Industrial Board.