Claim of Yannish v. New York Central Railroad

245 A.D. 872

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 15, 1935
• Status: Published

Opinion

The appeal is from an award for death benefits. The deceased was employed by the appellant as a repairman. A box car loaded with wheat destined for export left Buffalo, N. Y., for East Boston, Mass. En route and at Wayneport Cooling Plant, fifteen miles east of Rochester, N. Y., the car in question was cut out of the train because it had developed a hot journal, the stud bolts had loosened and the sill was bent. It could not proceed without repairs which were necessary to its safety on its journey. It was hauled to Rochester, arriving in the repair yards at eight-fifty-two a. m., December 13, 1926. The rest of the train of which it was a part proceeded on the trip. The repair shop was an open track, a spur of the main line. Deceased was directed to make the necessary repairs. While thus engaged he sustained an injury which resulted in his death. The work of repairing was completed about two hours after the accident, and the car resumed its eastward trip in a train which left Rochester at eleven-thirty-five p. m. on the same day. The length of time that it took to repair the car was between two and three hours. The original loading and billing of the car was not changed and the contents remained undisturbed. Disability awards of compensation were made to the employee and paid. The appellant asserts that the Board was without jurisdiction to make the award herein because of the fact that deceased was employed in interstate commerce. In behalf of the claimant it is urged that the appellant waived the jurisdiction by making payment of the award for disability benefits. Award reversed and claim dismissed, with costs against the State Industrial Board upon the ground that the deceased was employed in interstate commerce at the time of the accident. Present — Hill, P. J., Rhodes, Crapser, Bliss and Heffernan, JJ.