Claim of Benjamin v. Rosenberg Bros.

180 A.D. 234, 167 N.Y.S. 650, 1917 N.Y. App. Div. LEXIS 8140

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 28, 1917
• Status: Published

Opinions

Kellogg, P. J.:

The Commission has found that the claimant was an employee of Rosenberg Brothers and the testimony, if believed, clearly shows that such was the fact. In my judgment the evidence is not convincing; the transaction is suspicious. It seems that the claimant and his witnesses were trying to swear a liability upon the insurance company when none in fact existed, and if this were a case where we could review the facts I would vote to reverse the award. The Commission saw the witnesses and we have not seen them. The mandate of the law that we cannot review the determination of the Commission on a finding of fact, if there is evidence to sustain it, precludes a further consideration of the case. The only question involved in the case is the credibility of the witnesses. The words of their evidence fully comply with the law and cover the situation. The credibility of a witness is a question of fact and rests with the trior of the facts, and we cannot reverse the award because we believe the testimony is untrue. Under the restraint of section 20 of the Workmen’s Compensation Law I favor an affirmance.

All concurred, except Woodward, J., dissenting in opinion, in which Sewell, J., concurred.