Claim of Clemens v. Clemens & Grell

180 A.D. 92, 167 N.Y.S. 519, 1917 N.Y. App. Div. LEXIS 8117

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 14, 1917
• Status: Published

Opinion

Kellogg, P. J.:

The claim was heard before the Commission and the hearing, March 22, 1915, resulted in an award. The appellant made a motion, July 6, 1917, for the reopening of the case upon the ground that the accident occurred before the policy was issued upon the statement that no accident except a trivial one (other than this) had occurred, and that the policy was, therefore, obtained by fraud. The appellant made the same contention before the Commission upon the original hearing. It is true the Commission did not set aside the policy for fraud, but ruled that it would not go into the question of the fraud so long as the policy had in fact been issued. No new fact is presented to the Commission upon this motion, except that since the decision the Commission has determined as' to the legality of- policies and the court seems to maintain such practice. (Matter of Skoczlois v. Vinocour, 221 N. Y. 276.)

If timely appeal has been taken, the question may be considered and justice done on the appeal. If the appellant has allowed its time to appeal to expire the award is conclusive against it under section 23 of the Workmen’s Compensation Law (Consol. Laws, chap. 67 [Laws of 1914, chap. 41], as amd. by Laws of 1916, chap. 622, and Laws of 1917, chap. 705), and it should not, therefore, be accorded the right of a review under the name of a rehearing. Unless the award is reversed on appeal it should stand. The determination appealed from is, therefore, affirmed.

Determination of the Commission unanimously affirmed.