Claim of State Treasurer v. West Side Trucking Co. , 191 N.Y.S. 346 ( 1921 )

John M. Kellogg, P. J.:

The proceedings were very informal. No evidence was taken. The determination stands upon the discussion between the counsel and the Commissioner and the concessions made therein. Upon the first hearing the appellants’ attorney stated there was a dependent mother. The Commissioner stated that there was a mother but she was not dependent. The appellants’ attorney said that he was advised there was an action brought by her against the New York Railways Company, and suggested that the matter stand over for further information, which course was adopted.

At the next hearing the Commissioner asked the attorney for the appellants, “ What is the position of the carrier in this case? ” to which their attorney replied that he “ objected to any award on the ground claim was not filed within a year by any of the dependents.” He stated that there was a mother living, and a brother, and that he had communicated with them, and they informed him that they had turned the matter over for prosecution of a suit against a third party. The question was discussed, and the Commissioner said that an order would be made for $100 to the State Treasurer. The appellants’ counsel then objected to any award on the ground that no claim for compensation had been made by any person entitled to compensation, and, furthermore, that the death came through the agency of a third person, and there is a possibility of a third person suit. He continued: “ Of course information in the possession of the Commission does not warrant them in assuming a third party suit was commenced, but according to investigation we find the matter has been turned over for the prosecution of a third party suit. Inasmuch as there wfis no suit filed, or any claim filed, I don’t think the Commission has any jurisdiction. Commr. Archer: Is that all? [Appellants’ attorney]: That is all I have.” The Commissioner then declared the case closed.

Subdivision 7 of section 15 of the Workmen’s Compensation Law provides: “ The insurance carrier shall pay to the State Treasurer for every case of injury causing death in which there are no persons entitled to compensation the sum of one hundred dollars.” The direction by the Commission to pay the Treasurer is not an award of compensation, but it is the direction to the carrier to pay the amount which the statute directs it to pay. The Treasurer’s right to the money, and the power of the Commission to grant it, is not barred by the failure to file a claim under section 28. The allowance is not compensation (Workmen’s. Compensation Law, § 3, subd. 6); or death benefits (Id. § 16; Edsall v. Edsall, 179 App. Div. 481; Matter of State Industrial Commission v. Newman, 222 N. Y. 363.) It cannot be known with certainty whether there is a party entitled to compensation until the lapse of the year during which a claimant may file a claim. The other objection taken at the trial admits that there is nothing before the Commission with reference to a third party action. The only objections raised at the hearing are untenable, and, as we have seen, counsel stated that there was no other objection to the award. “ All questions of dependency shall be determined as of the time of the accident.” (Workmen’s Compensation Law, § 16, last sentence.) But the fact that the mother, the only relative surviving who might by any possibility be entitled to death benefits as a dependent, makes no claim for compensation within the time allowed by law, is some evidence that she was not a dependent. As we have seen, however, no evidence was given in the case. The determination rests upon the course of the trial, and when the counsel stated that he raised but two objections, each of which proved untenable, he is not now in a position to raise a third obj ection on appeal. All obj ections except the two stated are waived and cannot be considered here. The determination should, therefore, be affirmed.

Cochrane and Kiley, JJ., concur; Van Kirk, J:, concurs on the ground of waiver; H. T. Kellogg, J., dissents, with an opinion.