Claim of Fedorchuck v. Houbigant, Inc.

230 A.D. 528, 246 N.Y.S. 31, 1930 N.Y. App. Div. LEXIS 8662

Opinion

Per Curiam.

Alexander Fedorchuck, an employee of Houbigant, Inc., on November 26, 1927, while leaning over a powder mixing machine, had his right arm torn off and died the same day. He left him surviving bis wife, the claimant Mary, and a legally adopted son Leonard, born October 24, 1917. Leonard lives with the father of the claimant in Nicolaeff, Russia, and it is claimed that he is about to become a resident of this country.

Fedorchuck and wife arrived in this country in 1923. They could not have become naturalized at the date of Fedorchuck’s death. The infant Leonard was an alien at the time of the hearing March 7, 1928.

Section 17 of the Workmen’s Compensation Law provides for compensation to non-resident widows and children, but provides further that “ upon the application of the insurance carrier ” the Commission, now State Industrial Board, “ shall commute all future installments of compensation to be paid to such aliens. * *

The insurance carrier made application March 19, 1928, to commute the award. That application has been denied by the State Industrial Board.

It seems to us that the statute is mandatory and that the State Industrial Board is without power to deny the application of. the carrier. Its only function is to determine the amount. The statute makes no exception as to a non-resident alien who is about to become a resident.

The award should be reversed and the matter remitted, with costs to the appellant against the State Industrial Board.

Hinman, Acting P. J., Davis, Whitmyer, Hill and Hasbrouck, JJ., concur.

Award reversed and matter remitted, with costs against the State Industrial Board!