subdivisions to a case where the injured employee has worked less than six days a week for a substantial period of time. The claim here falls more appropriately within subdivision 3 of the section which provides for a case where "either of the foregoing methods of arriving at the annual average earnings of an injured employee cannot reasonably and fairly be applied." The Commission properly determined that this claim falls within subdivision 3. The remaining question is, was a correct method used in applying that subdivision.

The Commission made use of the multiplier 332 instead of 300 as fixed by the first two subdivisions and multiplied the daily wage of the claimant, which was three dollars, by 332 to ascertain his annual earnings, and divided the product by 52 to ascertain his average weekly wages as provided by subdivision 4 of the section. It appears that the Commission has adopted a rule to use the number 332 in the case of claimants working seven days a week. That number could not properly be arbitrarily selected. But it will be presumed that by examination, observation and investigation the Commission has ascertained, as required by subdivision 3, that “having regard to the previous earnings of the injured employee and of other employees of the same or most similar class, working in the same or most similar employment in the same or neighboring locality," the number 332 used as it was here accomplishes a result which in the case of claimants working seven days a week "shall reasonably represent the annual earning capacity of the injured employee in the employment in which he was working at the time of the accident." Subdivision 3 does not concern alone seven-day workers but includes all cases not included in subdivisions 1 and 2, and if with due regard to the requirements of subdivision 3, the Commission has ascertained that the method adopted in this case works out a fair and reasonable result, such method is protected by the statute. Certainly, on the face of it the number 332 is no more favorable to a claimant working seven days a week than the number 300 is to a claimant working six days a week. Furthermore, the exact earnings of the present claimant for the year preceding the accident amounted to $986, which is approximately the amount ascertained by the Commission by multiplying his daily wage of $3 by 332. The appellant does not seem to have, therefore, a substantial grievance.

The award should be affirmed. Award unanimously affirmed.

In the Leesman case the employer and the claimant, having ascertained from the payroll the total sum earned by the injured employee for the entire year preceding his fatal accident, agreed to divide this sum by fifty-two to get his average weekly wage. The Commission disapproved of their agreement and made an award under method one, with $4.50, the daily wage of the deceased employee at the time of the accident, as its basis for ascertaining the average weekly wage. Upon appeal, the insurance carrier's attorney argued that an employee must work substantially three hundred days per year to justify application of method one or two, and that two hundred and seventy-four

days fell short of such requirement. He also showed that the employee had worked during the first half of the year preceding his accident for a daily wage of $4.25 and had received an increase to $4.50 at the beginning of the second half. The Appellate Division upheld the Commission's ruling unanimously and without opinion: 182 App. Div. 907, Jan. 18, 1918. The Commission adopted an opinion of Commissioner Lyon interpreting section fourteen, as follows:

LEESMAN V. DREW BROS., S. D. R., vol. 14, p. 679, Bul., vol. 3, p. 50,

Oct, 18, 1917.

LYON, Commissioner: I do not think the method of determining the weekly wage proposed by the insurance carrier can be sustained by the statute. It is true that subdivision 4 of section 14 of the Compensation Law provides that the "average weekly wages " shall be one-fifty-second part of the average annual earnings," but I think the "average annual earnings" cannot be taken to be the actual amount which the injured employee earned during the year preceding his accident but must be determined in the manner provided in subdivisions 1, 2 and 3 of section 14, in each of which subdivisions the method of arriving at the " average annual earnings" is set forth.

Subdivision 1 of section 14 provides that where the injured employee has worked "substantially the whole of the year immediately preceding his injury his average annual earnings shall consist of three hundred times the average daily wage or salary that he shall have earned in such employment during the days when so employed." It is admitted here that the deceased worked substantially the whole of the year immediately preceding his injury; that is to say, that 274 days of service is a substantial year's work, and no question is made by the insurance carrier but that this is the fact. It will be noticed in the quotation already made that the average daily wage is to be found by dividing the yearly earnings by the number of days when so employed." If the total yearly earnings in this case, namely, $1,113.29 be divided by 274 it gives an average daily wage for the days actually employed of $4.06. Multiplying this by 300 gives an average annual wage of $1,218, which is more than $100 per month, and, therefore, makes the weekly basis of $23.08 upon which the compensation has already been figured, the proper one. It seems to me that the insurance carrier's error in its method of computation arises out of a misapprehension of the exact intent of the Compensation Law. We are not interested per se in determining earnings of the deceased in this case during the year preceding his death. What the Compensation Law apparently is seeking is to give compensation to the deceased's dependents for a certain proportion of what it may be presumed he would have earned during the weeks subsequent to his injury. That he worked only 274 days in the year preceding his death is no reason for supposing that he would not have worked more than that length of time during the next year if he had lived and had had no injury. It appears to me that we are seeking here not so much the actual earnings of the deceased as his wage earning capacity, and the fact that he happened, during the preceding year, to work 26 days less than the 300 set up as a standard by the act, is a mere incident. What the act

"Ejus & that we shall find what his capacity to earn was rather than KL #5 and then presuming that his capacity would have FILLIMI TIE same fre the future weeks, base compensation on that. Now

Dreamed a taparty so aan money of course is determined not by the mmier f tags via he was able to secure employement, but by the rate Lyfe the days when he di work and such is the exact wording of THE LAV ILIKg the merge annual earnings shall consist of three hundred tes de corapt útly rape ce salary which he shall have earned in such enju "ment Ewing the boys when so employed". Having determined the ATAPANE VAN Ang panty, per day, of a man who worked substantially The Thư để the pear poweling the injury, there is, I think, a conclusive presumpran that the red man. but for his injury, would have worked tats per pear furing the term of disability, or so long as compensation 28 JATTU Ld this is the basis of an award under the statute.

hat the legsas 28 apparently had in mind when they adopted the rules Zaud down a section 14 was to make a rule somewhat arbitrary in itself, which VALVA Gt averigestive and be simple and easy of application in the mitrale ċ ass visi re before the Commission. Of course a healthy and ambitious widze mýt work more than 300 out of 313 working days të the pear, and soch a workman who is put on the basis of 300 working days Tam,nes s mevia: less sumpensation than his actual earnings would warrant, whereas the wrazu who works for any reason less than 300 days in the pear po wibed be works a sufsent number of days to make a finding that be has worked substantially the while year proper, receives some advantage ver his kul anis It is probable, moreover, that the Legislature Ernesaw the administrative dealties which would confront this Commission I summe simple and easily applied rules were not adopted, making it unnecessary to take voluminous testim by in each case to arrive at the injured workCasal azis

It is difcut to see how a Commission passing on 60,000 cases a year, as this Commissie Joes, could possibly go into the determination of the earnings of employees, if every case had to be tried out on the actual facts. The statute, therefore, makes a very easy and simple rule based on the actual earnings of the injured man for the preceding year, if he has worked substantially all the time during that year, and if not, on the average earnings of another workman in a similar employ and in the neighborhood who has worked substantially all the year.

In my opinion the award already made has brought out the correct result whether it be based on an average wage of four dollars and six cents per day for the days actually worked, or on a larger wage which was admitted to be cerrect by both the employer and employee, and I advise that the award be cefmd.

Leesman was a shorer in the building trade. He had lost a week during the preceding winter on account of snow. No further appeal was taken in his case. On the same day that it approved the award to Leesman's widow under method one, the Appellate Division approved an award to a bricklayer named Littler under method two. In this case, the appellants undertook

to show by conflicting estimates of witnesses as to time lost on account of weather that steady work was impossible in the bricklayers' occupation and that, therefore, methods one and two were inapplicable. The employer appealed to the Court of Appeals which reversed the order of the Appellate Division upon the ground that the bricklayers' trade falls short of the three hundred days "standard of steady employment and remitted the proceeding to the Commission for computation under method three. The opinion of the Court of Appeals is as follows:

LITTLER V. FULLER Co., 223 N. Y. 369, May 7, 1918.

POUND, J.: Littler, the claimant, was a bricklayer. At the time he was hurt he was working for George A Fuller Company. It was constructing a residence at Great Neck, L. I., two miles from the railroad station. The workmen, who came out by train had refused to remain on the job unless the employer would furnish free transportation to and from the work from and to the railroad station. The employer hired an automobile truck to take the employees, morning and night, to and from their work. At the end of the day's work on May 22, 1917, when the truck was making its trip to the station, it went into the ditch. Littler was thrown off and injured.

The industrial commission properly held that the injuries arose out of and in the course of Littler's employment. The vehicle was provided by the employer for the specific purpose of carrying the workmen to and from the place of the employment and in order to secure their services. The place of injury was brought within the scope of the employment because Littler, when he was injured was 66 on his way * * * from his duty within the precincts of the company." (Matter of De Voe v. N. Y. State Railways, 218 N. Y. 318, 320.) The day's work began when he entered the automobile truck in the morning and ended when he left it in the evening. The rule is well established that in such cases compensation should be awarded. (Donovan's Case, 217 Mass. 76; Cremins v. Guest, Keen & Nettlefolds, [1908] 1 K. B. 469; Stewart & Son v. Loughhurst, [1917] A. C. 249.) The case would be different if at the time of the accident claimant had been on the railroad train on his way to or from Great Neck.

The average weekly wage of Littler was computed by the commission under subdivision 2 of section 14 of the Workmen's Compensation Law (Cons. Laws, ch. 67) with the result that the award is based on annual earnings of three hundred times his daily wage. No finding that bricklayers work substantially the whole of the year was made. The evidence is to the effect that they average about thirty weeks of employment at their trade in each year. Three hundred days' work in the year is the standard of steady employment. "The average weekly wages of an employee shall be one-fiftysecond part of his average annual earnings." (§ 14, subd. 4.) The award should not exceed two-thirds of the earning capacity. Average annual earnings are computed under subdivisions 1, 2 or 3 of section 14 as the case requires. If the nature of the employment does not permit steady work during substantially the whole of the year the annual earning capacity of the injured employee in the employment is the proper basis of compensation. (§ 14,

contemplates is that we shall find what his capacity to earn was rather than his actual earnings, and then presuming that his capacity would have remained the same for the future weeks, base compensation on that. Now the deceased's capacity to earn money of course is determined not by the number of days which he was able to secure employement, but by the rate of his pay for the days when he did work and such is the exact wording of the law, namely, "his average annual earnings shall consist of three hundred times the average daily wage or salary which he shall have earned in such employment during the days when so employed.". Having determined the average wage earning capacity, per day, of a man who worked substantially the whole of the year preceding the injury, there is, I think, a conclusive presumption that the injured man, but for his injury, would have worked 300 days per year during the term of disability, or so long as compensation is payable, and this is the basis of an award under the statute.

What the legislators apparently had in mind when they adopted the rules laid down in section 14 was to make a rule somewhat arbitrary in itself, which would work out average justice and be simple and easy of application in the multitude of cases which come before the Commission. Of course a healthy and ambitious workman might work more than 300 out of 313 working days of the year, and such a workman who is put on the basis of 300 working days receives somewhat less compensation than his actual earnings would warrant, whereas the workman who works for any reason less than 300 days in the year, provided he works a sufficient number of days to make a finding that he has worked substantially the whole year proper, receives some advantage over his actual earnings. It is probable, moreover, that the Legislature foresaw the administrative difficulties which would confront this Commission if some simple and easily applied rules were not adopted, making it unnecessary to take voluminous testimony in each case to arrive at the injured workman's actual earnings.

It is difficult to see how a Commission passing on 60,000 cases a year, as this Commission does, could possibly go into the determination of the earnings of employees, if every case had to be tried out on the actual facts. The statute, therefore, makes a very easy and simple rule based on the actual earnings of the injured man for the preceding year, if he has worked substantially all the time during that year, and if not, on the average earnings of another workman in a similar employ and in the neighborhood who has worked substantially all the year.

In my opinion the award already made has brought out the correct result whether it be based on an average wage of four dollars and six cents per day for the days actually worked, or on a larger wage which was admitted to be correct by both the employer and employee, and I advise that the award be confirmed.

Leesman was a shorer in the building trade. He had lost a week during the preceding winter on account of snow. No further appeal was taken in his case. On the same day that it approved the award to Leesman's widow under method one, the Appellate Division approved an award to a bricklayer named Littler under method two. In this case, the appellants undertook