Claim of Sindone v. La Sala Bros.

Appellate Division of the Supreme Court of New York

Claim of Sindone v. La Sala Bros.

23 A.D.2d 596, 256 N.Y.S.2d 481, 1965 N.Y. App. Div. LEXIS 4861

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

DecidedFebruary 17, 1965

StatusPublished

This text of 23 A.D.2d 596 (Claim of Sindone v. La Sala Bros.) 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 Sindone v. La Sala Bros., 23 A.D.2d 596, 256 N.Y.S.2d 481, 1965 N.Y. App. Div. LEXIS 4861 (N.Y. Ct. App. 1965).

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Opinion

Taylor, J.

Claimant appeals from a decision of the Workmen’s Compensation Board disallowing her claim for death benefits upon the finding that her asserted status as the dependent surviving spouse of the deceased workman was not satisfactorily established. The right to compensation is founded on the contention that claimant and decedent contracted a valid common-law marriage during a week-end trip to Washington, D. C., in 1955. There was evidence of their mutual agreement per verba de praesenti to he husband and wife consummated by cohabitation (see United States Fid. & Guar. Co. v. Britton, 269 P. 2d 249, 251), the subsequent acknowledgment of the marital relationship by decedent and other conduct on his part consistent with the existence of the marriage. There was also proof of acts and declarations of claimant in the interval between the alleged marriage and decedent’s death which could be deemed to be more in harmony with her status as the widow of one Wunderlich than that of the wife of decedent and thus to give rise to the inference that the marriage was not, in fact, contracted. The issue whether a common-law marriage existed at the time of the death was factual and, of course, within the sole and exclusive competence of the board to resolve. Since we cannot say on the record, considered as a whole, that the evidence which the board chose to accept lacked substantiality, the limited scope of our power of review leaves us no alternative but to affirm its determination. (Matter of Dam V. GwndermaM & Sons, 283 N. Y. 459; Matter of Palermo v. Gallucci & Sons, 5 N Y 2d 529, 533.) Decision affirmed, without costs. Herlihy, J. P., Reynolds, Taylor, Aulisi and Hamm, JJ., concur.

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Taylor, J.

Claimant appeals from a decision of the Workmen’s Compensation Board disallowing her claim for death benefits upon the finding that her asserted status as the dependent surviving spouse of the deceased workman was not satisfactorily established. The right to compensation is founded on the contention that claimant and decedent contracted a valid common-law marriage during a week-end trip to Washington, D. C., in 1955. There was evidence of their mutual agreement per verba de praesenti to he husband and wife consummated by cohabitation (see United States Fid. & Guar. Co. v. Britton, 269 P. 2d 249, 251), the subsequent acknowledgment of the marital relationship by decedent and other conduct on his part consistent with the existence of the marriage. There was also proof of acts and declarations of claimant in the interval between the alleged marriage and decedent’s death which could be deemed to be more in harmony with her status as the widow of one Wunderlich than that of the wife of decedent and thus to give rise to the inference that the marriage was not, in fact, contracted. The issue whether a common-law marriage existed at the time of the death was factual and, of course, within the sole and exclusive competence of the board to resolve. Since we cannot say on the record, considered as a whole, that the evidence which the board chose to accept lacked substantiality, the limited scope of our power of review leaves us no alternative but to affirm its determination. (Matter of Dam V. GwndermaM & Sons, 283 N. Y. 459; Matter of Palermo v. Gallucci & Sons, 5 N Y 2d 529, 533.) Decision affirmed, without costs. Herlihy, J. P., Reynolds, Taylor, Aulisi and Hamm, JJ., concur.

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Bluebook (online)

23 A.D.2d 596, 256 N.Y.S.2d 481, 1965 N.Y. App. Div. LEXIS 4861, Counsel Stack Legal Research, https://law.counselstack.com/opinion/claim-of-sindone-v-la-sala-bros-nyappdiv-1965.

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