Opinion · Appellate Division of the Supreme Court of the State of New York

Claim of Klein v. Brooklyn Heights Railroad

177 N.Y.S. 67

Type
Opinion
Court
Appellate Division of the Supreme Court of the State of New York
Jurisdiction
New York
Date
1919-06-30
Topic
general

H. T. Kellogg, J.: This is an appeal from an award to the father, mother and infant sister of a deceased employee. The award to the father is disputed on the ground that he was not a dependent. The deceased earned eighteen dollars a week, reserved for spending money four or five dollars, gave his infant sister two or three dollars, and paid the balance of about twelve dollars to his mother, who bought his clothes and used the remainder for general family purposes.

Citator

UpLaw has not yet analyzed Claim of Klein v. Brooklyn Heights Railroad. The absence of a flag is not a finding that it is good law.

Cited by
3 opinions
KLEINv. BROOKLYN HEIGHTS RAILROAD CO.,188 App. Div. 509(1919)
177 N.Y.S. 67
Before STATE INDUSTRIAL COMMISSION, Respondent.
In the Matter of the Claim of ANNIE KLEIN, Mother, HERMAN KLEIN, Father,
and RUTH KLEIN, Sister, Respondents, for Compensation under the Workmen's
Compensation Law, for the Death of GUSTAVE KLEIN,v. THE BROOKLYN
HEIGHTS RAILROAD COMPANY, Employer and Self-Insurer, Appellant.
Appellate Division of the Supreme Court of New York, Third Department.
June 30, 1919.
Page 510
George D. Yeomans[Trabue Carswellof counsel], for the appellant.Charles D. Newton, Attorney-General[E.C. Aiken, DeputyAttorney-General, of counsel], for the respondents.
H.T. KELLOGG, J.:
This is an appeal from an award to the father, mother and infant sister of a deceased employee. The award to the father is disputed on the ground that he was not a dependent. The deceased earned eighteen dollars a week, reserved for spending money four or five dollars, gave his infant sister two or three dollars, and paid the balance of about twelve dollars to his mother, who bought his clothes and used the remainder for general family purposes. The father earned twelve dollars a week, which he paid to the mother, while a brother, who earned eight dollars a week, paid her six dollars for the family fund. The mother and sister were not wage-earners. There were two other members of the family, but they need not be considered, for they were self-supporting, and did not contribute to the family maintenance. For the support of a family of five, therefore, there was a common fund of thirty dollars, to which the deceased contributed twelve dollars, the father twelve dollars, and the brother six dollars. If the fund was distributed equally to the needs of the five, so that each received the benefit of an expenditure of six dollars, then the brother expended just what he paid in, the deceased and his father each provided six dollars more than he expended, and the mother and sister were the sole beneficiaries of the excess payments. It is, therefore, difficult to see wherein the father could have been dependent upon his son. The aid of the son lightened the burden of the father, but such aid made the mother and sister, not the father, the dependents of the deceased. For the loss of such aid the mother and sister have received awards, and for the same loss the father cannot also be paid without duplication of compensation. It is clear that unless the father expended more than the twelve dollars which he paid he received no benefit from the contributions of his son. As no such expenditure was proven, the father was not a dependent of the deceased employee, and should not have had an award.Page 511

The award is reversed and the matter remitted to the Commission for action in accordance with this opinion.

All concurred, except JOHN M. KELLOGG, P.J., dissenting.

Award reversed and matter remitted to the State Industrial Commission.