Claim of Duffy v. W. G. Cornell Co.

245 A.D. 883

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 15, 1935
• Status: Published

Opinion

This is an appeal by the employer and insurance carrier from an award of the State Industrial Board granting compensation to Mary Duffy, the mother of John Duffy. The sole question is dependency. The mother in her application for compensation says that she lives in Ireland; that she was partially dependent by “ assistance of money from time to time ” sent by deceased; that she and her husband lived upon a farm but were illiterate and kept no record of the farm. The affidavit of William Durning says that he cashed American money orders in the years 1926 and 1927 for Patrick and Mary Duffy from their son, John Duffy; that the orders varied from two to four pounds but he could not give specific dates. The affidavit of the father and mother says that John sent about twelve pounds from June until December, 1926. John Duffy died in New York on September 23, 1927. There is no legal proof showing that the decedent contributed to the support of his mother in whole or in part for the period of one year prior to the accident as provided by section 17 of the Workmen’s Compensation Law. The affidavit of claim upon which this proceeding is based is devoid of any evidence showing that the mother is dependent. The award is reversed and the claim remitted, with costs against the State Industrial Board. Hill, P. J., MeNamee, Crapser and Bliss, JJ., concur; Heffernan, J., dissents, on the ground that carrier’s counsel, with full knowledge of the facts, stated that the only ground of controversy was that the third party action was pending, and that he had waived the question of dependency, and made no suggestion that there was any such issue until after the award has been made. (See Matter of Burmester v. DeLucia, 263 N. Y. 315.)