Claim of Kolenski v. Bernier

269 A.D. 791, 54 N.Y.S.2d 915, 1945 N.Y. App. Div. LEXIS 3874

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 9, 1945
• Status: Published

Opinion

Appeal from a decision disallowing the claim of a mother and father for dependency benefits. The attorney for the claimant-appellant requested that the matter be held to permit further proof from Poland. This request should have been granted. Decision reversed, with costs to the appellant, and matter remitted to the State Industrial Board. All concur, except Brewster, J., who dissents with the following memorandum: The question presented relates to the claim of claimant-appellant that she and her late husband, while residing in Poland, were supported by the deceased, in whole dr in part, during the year prior to his fatal accident. The finding that the evidence submitted to prove such dependency and support was insufficient to establish facts essential to validate the claim asserted, was lawfully within the purview of the power of the triers of the fact and may not be disturbed. (Workmen’s Compensation Law, § 20.) The proofs were such that we may not say as a matter of law that they conclusively established that claimant was entitled to the award. (Matter of Daus v. Gunderman & Sons, Inc., 283 N. Y. 459, 464; see, also, Pifumer v. Rheinstein & Hass, Inc., 187 App. Div. 821; Bonnano v. Metz Brothers Co., 188 App. Div. 380; Vassilakis v. Fairfax Hotel Company, Inc., 193 App. Div. 829; Matter of Ewashko v. Huyck, 264 App. Div. 803; Matter of Belcher v. Carthage Machine Co., 224 N. Y. 326.) The decision appealed from should be affirmed, without costs.