Opinion
March 12, 1927.
Appeal from State Industrial Board.
Ireland Caverly [ William S. Pendleton of counsel], for the appellants, employer and carrier.
E.A. Conger, for the appellant, administrator.
Albert Ottinger, Attorney-General [ E.C. Aiken, Deputy Attorney-General, of counsel], for the respondent State Industrial Board.
Present — VAN KIRK, Acting P.J., HINMAN, McCANN, DAVIS and WHITMYER, JJ.
The basis of the appeal by the employer and carrier is that the date of accident and not the date of death should determine the amount payable to the State Treasurer in the case of accidents resulting in death in which there are no persons entitled to compensation. The accident occurred on October 16, 1919, at which time the law provided for a payment of $100 to the State Treasurer. (Workmen's Compensation Law, § 15, subd. 7, as added by Laws of 1916, chap. 622.) The death occurred on February 5, 1925. By chapter 615 of the Laws of 1922 the Legislature provided an increase of payments to the State Treasurer to $1,000. (Workmen's Compensation Law, § 15, subds. 8, 9.) We agree with the State Industrial Board that the date of death is controlling in such case and that no error was committed in making awards to the State Treasurer totalling $1,000. ( Muller v. Apel, 215 App. Div. 737; affd., 242 N.Y. 499; Kolb v. Griot Fischer, 214 App. Div. 840; Donoho v. Atlantic Basin Iron Works, 210 id. 535.) The administrator of the deceased workman also appeals from a decision rescinding a disability award made to the deceased workman after his death. The date of accident controls as to such disability claims and since there was no provision for the making of a post mortem disability award in the law at the time of the accident to Michael Shanaghan, an award made to him after his death was properly rescinded. ( Matter of Terry v. General Electric Co., 232 N.Y. 120; Draper v. Draper Sons, Inc., 201 App. Div. 770. )
Award and decision affirmed, with costs to the State Industrial Board.