Claim of Duncan v. Trans-World Airlines, Inc.

Appellate Division of the Supreme Court of New York

Claim of Duncan v. Trans-World Airlines, Inc.

19 A.D.2d 666, 241 N.Y.S.2d 18, 1963 N.Y. App. Div. LEXIS 3466

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 27, 1963

StatusPublished

This text of 19 A.D.2d 666 (Claim of Duncan v. Trans-World Airlines, Inc.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Claim of Duncan v. Trans-World Airlines, Inc., 19 A.D.2d 666, 241 N.Y.S.2d 18, 1963 N.Y. App. Div. LEXIS 3466 (N.Y. Ct. App. 1963).

Pincite

Opinion

Claimants appeal from a decision of the Workmen’s Compensation Board which denied claimants (father and mother of a deceased employee) compensation on the grounds that they were not dependent upon him. The only proof of dependency in the record is the testimony of claimants, father and mother, that decedent made certain contributions to them. There is no supporting documentary or other evidence. The board overruled a Referee’s decision and stated in its memoranda of decision: “ The Board finds on credible evidence that it does not believe the testimony of the deceased’s parents that the deceased actually made the contributions, as alleged. The Board finds on the evidence that the deceased did not help maintain and support the mother and that the mother was not dependent on the deceased at the time of the accident.” Appellants argue that the board cannot overrule a Referee on credibility. Such is not the case, and we have held many times that the credibility of witnesses is solely within the province of the board, even as recently as April 4, 1963 in Matter of Scarpullo v. Alba Barber Shop (18 A D 2d 1122). Moreover, the testimony of the father and mother was vague and general, and there is evidence pertaining to the family financial situation which would strongly tend to support the board’s factual determina[667]*667tian that there was no dependency. Decision unanimously affirmed, without costs. Present — Bergan, P. J., Coon, Gibson, Herlihy and Taylor, JJ.

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Claimants appeal from a decision of the Workmen’s Compensation Board which denied claimants (father and mother of a deceased employee) compensation on the grounds that they were not dependent upon him. The only proof of dependency in the record is the testimony of claimants, father and mother, that decedent made certain contributions to them. There is no supporting documentary or other evidence. The board overruled a Referee’s decision and stated in its memoranda of decision: “ The Board finds on credible evidence that it does not believe the testimony of the deceased’s parents that the deceased actually made the contributions, as alleged. The Board finds on the evidence that the deceased did not help maintain and support the mother and that the mother was not dependent on the deceased at the time of the accident.” Appellants argue that the board cannot overrule a Referee on credibility. Such is not the case, and we have held many times that the credibility of witnesses is solely within the province of the board, even as recently as April 4, 1963 in Matter of Scarpullo v. Alba Barber Shop (18 A D 2d 1122). Moreover, the testimony of the father and mother was vague and general, and there is evidence pertaining to the family financial situation which would strongly tend to support the board’s factual determina[667]*667tian that there was no dependency. Decision unanimously affirmed, without costs. Present — Bergan, P. J., Coon, Gibson, Herlihy and Taylor, JJ.

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Bluebook (online)

19 A.D.2d 666, 241 N.Y.S.2d 18, 1963 N.Y. App. Div. LEXIS 3466, Counsel Stack Legal Research, https://law.counselstack.com/opinion/claim-of-duncan-v-trans-world-airlines-inc-nyappdiv-1963.