Claim of Nourse v. Ballina Sand & Stone Co.

Appellate Division of the Supreme Court of New York

Claim of Nourse v. Ballina Sand & Stone Co.

2 A.D.2d 729, 152 N.Y.S.2d 683, 1956 N.Y. App. Div. LEXIS 5030

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

DecidedJune 14, 1956

StatusPublished

This text of 2 A.D.2d 729 (Claim of Nourse v. Ballina Sand & Stone Co.) 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 Nourse v. Ballina Sand & Stone Co., 2 A.D.2d 729, 152 N.Y.S.2d 683, 1956 N.Y. App. Div. LEXIS 5030 (N.Y. Ct. App. 1956).

Pincite

Opinion

Appeal by employer and its carrier from a decision and award of the Workmen’s Compensation Board which modified a previous award in a death case. The sole issue arises upon appellants’ contention that there was no evidence to support the board’s finding as to the average weekly wages of decedent, a minor, considering “that under normal conditions his wages would be expected to increase”. (Workmen’s Compensation Law, § 14, subd. 5.) The accident and death occurred on July 30, 1924. Death benefits were awarded decedent’s parents, each at $6.31 weekly, based on a finding on October 21, 1924 of an average weekly wage of $25.26. The decision and award appealed from increased the weekly payment to $7.21 on a finding of an average weekly wage of $28.85, expressly taking “ into consideration the fact that under normal conditions his [decedent’s] wages would be expected to increase”, it clearly appearing that the original award did not contemplate the possibility of such increase. Decedent left school at the age of 16, when in the seventh or eighth grade and at the time of his death when 18 years old was employed as a laborer in a gravel pit. The employer has been out of business for some years. From evidence taken in the reopened case, the board was entitled to find that decedent had some mechanical aptitude, which seems to us sufficient to establish the expected wage increase of $2.59 per week, over his earnings as a laborer, as contemplated by the board’s decision. It is therefore unnecessary for us to consider certain alleged admissions by the employer and its carrier. Decision and award unanimously affirmed, with costs to be divided, one half to respondent Nourse and Nourse as executrix, and one half to respondent, Workmen’s Compensation Board. Present — Foster, P. J., Bergan, Coon, Halpem and Gibson, JJ.

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Appeal by employer and its carrier from a decision and award of the Workmen’s Compensation Board which modified a previous award in a death case. The sole issue arises upon appellants’ contention that there was no evidence to support the board’s finding as to the average weekly wages of decedent, a minor, considering “that under normal conditions his wages would be expected to increase”. (Workmen’s Compensation Law, § 14, subd. 5.) The accident and death occurred on July 30, 1924. Death benefits were awarded decedent’s parents, each at $6.31 weekly, based on a finding on October 21, 1924 of an average weekly wage of $25.26. The decision and award appealed from increased the weekly payment to $7.21 on a finding of an average weekly wage of $28.85, expressly taking “ into consideration the fact that under normal conditions his [decedent’s] wages would be expected to increase”, it clearly appearing that the original award did not contemplate the possibility of such increase. Decedent left school at the age of 16, when in the seventh or eighth grade and at the time of his death when 18 years old was employed as a laborer in a gravel pit. The employer has been out of business for some years. From evidence taken in the reopened case, the board was entitled to find that decedent had some mechanical aptitude, which seems to us sufficient to establish the expected wage increase of $2.59 per week, over his earnings as a laborer, as contemplated by the board’s decision. It is therefore unnecessary for us to consider certain alleged admissions by the employer and its carrier. Decision and award unanimously affirmed, with costs to be divided, one half to respondent Nourse and Nourse as executrix, and one half to respondent, Workmen’s Compensation Board. Present — Foster, P. J., Bergan, Coon, Halpem and Gibson, JJ.

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Bluebook (online)

2 A.D.2d 729, 152 N.Y.S.2d 683, 1956 N.Y. App. Div. LEXIS 5030, Counsel Stack Legal Research, https://law.counselstack.com/opinion/claim-of-nourse-v-ballina-sand-stone-co-nyappdiv-1956.