Graf v. Mazzella

240 A.D. 974

Opinion

Judgment and order reversed on the law, with costs, and complaint dismissed, with costs. The proceedings before the Industrial Board are a bar to this action. There was a finding therein that decedent met his death while in the employ of defendant. That no award was made to decedent’s parents, the next of kin in this action, does not change the result. (Shanahan v. Monarch Engineering Co., 219 N. Y. 469.) Lazansky, P. J., Carswell and Davis, JJ., concur; Kapper and Hagarty, JJ., dissent and vote to affirm upon the ground that on the record before us it appears that the decedent was not an employee of the defendant, and the jury by its verdict has so found, that the application for compensation was the result of an innocent mistake, and that there has been, as a matter of fact, no compensation paid to those who would otherwise be entitled to it.