Opinion
May 11, 1949.
Appeal from Workmen's Compensation Board.
Present — Foster, P.J., Heffernan, Brewster, Deyo and Santry, JJ.
The decedent was employed as a captain of waiters in a restaurant owned and operated by the employer in New York City. He worked between the hours of 4:00 P.M. and 1:00 A.M. The employer furnished lockers for decedent and its other employees on the fifth floor of its restaurant building. The building had an elevator which was operated by an elevator man daily until 1:00 A.M. The elevator door was locked when the operator went off duty but could be opened by the use of an ice pick or stirring spoon. It was customary for the decedent and other employees on coming to work to take the elevator to the fifth floor, leave their street clothes and when the day's work was finished to again take the elevator to get their clothes preparatory to going home. On the night of the accident the decedent was last seen in the performance of his duties at about 12:30 A.M. A few minutes after 1:00 A.M. the elevator door was found open and a groaning noise was heard in the shaft. Investigation disclosed the decedent lying in the pit of the shaft dead from a fractured skull. The appellants contend that the accident did not arise out of and in the course of employment because the decedent violated a rule of the employer forbidding employees to operate or use the elevator in the absence of the elevator man without permission of the management. The evidence is conflicting, both as to whether the rule was ever made known to the decedent and as to whether it was enforced by the employer. The accident was unwitnessed and there is no proof as to how it happened. Upon the evidence and under the presumption provided by section 21 Work. Comp. of the Workmen's Compensation Law the finding of the board that the accident arose out of and in the course of employment is fully supported. The appellants also contend that the claimant is estopped from claiming that she is the legal widow of the decedent. On May 19, 1944, the claimant obtained a Mexican divorce from the decedent. The arrangements for the divorce were made by correspondence. A Mexican attorney appeared for the claimant, who was the plaintiff. The decedent submitted to the jurisdiction of the Mexican court as defendant. Neither of the parties ever went to Mexico. It was a typical mail-order divorce. In April, 1946, the claimant brought an action against the decedent in the Supreme Court of Queens County for absolute divorce on the ground of adultery. On October 3, 1946, an interlocutory decree of divorce in favor of the claimant was granted in this action. This decree adjudged the Mexican divorce to be void and of no effect. Before the decree became final the decedent died. While the appellants concede that the New York decree did not dissolve the marriage, because it had not become final, they contend that inasmuch as the claimant sought and obtained the Mexican divorce she is now barred from asserting its invalidity, and is not entitled to an award as the widow of the decedent. The contention of the appellants has been definitely rejected by the Court of Appeals in Caldwell v. Caldwell ( 298 N.Y. 146). It was there held that so-called mail-order divorces where the parties never acquired any semblance of domicile in the foreign jurisdiction are absolutely void in every respect and cannot be made the basis of estoppel, even against the party who obtained such a divorce. It follows that the claimant is the lawful widow of the decedent. Decision and award unanimously affirmed, with costs to the Workmen's Compensation Board.