Judgment reversed on the law and a new trial granted, costs to abide the event. In our opinion, the plaintiff was not a dependent of the decedent and was, therefore, not entitled to any benefit under the Workmen’s Compensation Law and so was not put to an election to claim under that law or maintain this action. The claim made by the father of the decedent’s grandchildren and the award for their benefit under that law did not constitute an election which barred this action. (Matter of Zirpola v. Casselman, Inc., 237 N. Y. 367; Matter of Cahill v. Terry & Tench Co., 173 App. Div. 418; Matter of Petrone v. U. S. Trucking Corp., 236 id. 531.) The portion of the funeral expenses which constituted a part of the award to the grandchildren must, of course, be deducted from any damages which plaintiff may recover. Lazansky, P. J., Young, Kapper Scudder and Tompkins, JJ., concur.
Russo v. Muro
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