Frankel v. Gellens & Weiss

253 A.D. 849, 1 N.Y.S.2d 373, 1938 N.Y. App. Div. LEXIS 8891

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 12, 1938
• Status: Published

Opinion

The employer and insurance carrier have appealed from an award of the State Industrial Board in claimant’s favor. On December 20, 1934, claimant sustained accidental injuries. The appellants contend that claimant was not an employee and that the accident did not arise out of and in the course of the employment, and that the Board erred in fixing claimant’s probable wage increase. Claimant testified that he was hired by Weiss, a member of the copartnership, and by Prince, the night foreman. He also testified that both of these persons directed him in the performance of his duties. Claimant also testified that, while returning from loading his employer’s truck, he fell on the employer’s premises and sustained the injuries in question. The Board made an award of double indemnity on the ground that claimant was working without a proper employment certificate. Claimant testified that he was fifteen years of age at the time of the accident. He also testified that he received a salary of from six dollars to seven dollars weekly, and that the next job in the employer’s organization was that of chauffeur and checker, which paid from thirty dollars to thirty-five dollars weekly. On this basis the Board found a wage expectancy of twenty-five dollars a week. Appellants produced no evidence to the contrary. Award unanimously affirmed, with costs to the State Industrial Board. Present ■ — ■ Hill, P. J., Rhodes, McNamee, Bliss and Heffernan, JJ.