Agnew v. Montgomery Ward & Co.

280 A.D. 1008, 116 N.Y.S.2d 724, 1952 N.Y. App. Div. LEXIS 4557

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 17, 1952
• Status: Published

Opinion

Appeal by a self-insured employer from a decision and award made by the Workmen’s Compensation Board awarding death benefits to the decedent employee’s mother and a minor brother and sister as dependents. The evidence considered by the board in affirming the referee’s decision is ample to support the findings of dependency which have been made, but there was excluded therefrom evidence that decedent’s father, at whose home he lived with his mother and brother and sisters, was the recipient of a pension described as “ Compensation received as a result of an injury received in the war” and which varied in amount from $60 to $72. The evidence is that the family were living together and that the income of its members was generally pooled to defray their living expenses. In such a case the determination of the questions of dependency here in issue should only be made after a full disclosure of all assets and resources available and availed of by those who assert their dependency upon the deceased. The monthly or yearly amount of the father’s pension, the precise kind or nature of it, its availability either in law or in fact for the support of his dependents and the use actually made of it have not been shown. Decision and award reversed on the law, and the claim remitted to the Workmen’s Compensation Board, without costs, for further proof upon the issue of dependency. Foster, P. J., Brewster, Bergan and Coon, JJ., concur; Heffernan, J., taking no part.