Claim of Smith v. Surf Apartments

227 A.D. 832

Opinion

Award modified so as to provide compensation for a period of two and five-sixths weeks at the rate of twenty dollars per week, ending July 28, 1927, on the ground that for the first seven weeks full wages were paid by the employer, on the authority of Matter of Sullivan v. Seely Son, Inc. (226 App. Div. 629); Bell v. Fraser (210 id. 560, 563); Matter of Rasmussen v. Park G. & M. Shop, Inc. (223 id. 591); and as so modified affirmed. Van Kirk, P. J., Hinman, Whitmyer and Hill, JJ., concur; Davis, J., dissents and votes for reversal on the ground that the amount of wages paid voluntarily by the employer amounts to more than the compensation during the period of disability covered by the award; and it is inequitable to permit the claimant to profit by receiving both wages and compensation. (Matter of Fredenburg v. Empire U. Railways, Inc., 168 App. Div. 618, 623; Matter of Sullivan v. Seely Son, Inc., 226 id. 629.)