reasons: Benkert v. Cornell Steamboat Co., Death Case, No. 43676, Feb. 10, 1919; 190 App. Div. 885, Nov. 12. 1919.

A card tender's hand was amputated by a factory machine. The Commission, saying that the employer had failed to furnish data for determining the employee's wages under subdivision one, calculated his average annual earnings according to the wages he was getting at the time of the accident. It found that his average weekly wage had been $17.40 plus a twelve per cent bonus; that is, $19.49. Its corrected findings stated that his award should be $12.81 per week. The Appellate Division, taking as a basis for calculation the employer's payroll tabulation which showed that the employee had actually received $826 wages and bonus during the year preceding his accident, found that the employee's average weekly wage had been $15.88 and that his award should be $10.59 per week. It held methods one and two inapplicable to employees regularly working no more than five days a week. Having modified the award accordingly, it affirmed it as modified, with opinion as follows:

This

REMO V. SKENANDOA COTTON Co., 189 App. Div. 367, Nov. 12, 1919. H. T. KELLOGG, J.: The average weekly wages of an injured employee constitute the basis upon which to compute compensation. (Workmen's Compensation Law, § 14.) In this instance the Industrial Commission used a letter, written to it by the employer, to determine the weekly wages. The employer wrote: "Victua Remo worked nights, working five nights a week of 12 hours each or 60 hrs. at 29c an hour, $17.40. In addition to this rate anyone in our employ a year was to receive 12% additional to which he was receiving at the time of the accident." The employer inclosed with the letter a statement showing the earnings of the claimant during the previous year. disclosed that the claimant worked for the employer during every week for fifty-two weeks; that he worked on the average sixty-one hours per week: that during the last ten weeks of his employment he was paid twenty-nine cents per hour, with a bonus of 12 per cent; that for the remaining forty-two weeks he was paid at a rate varying from twenty-two cents to twenty-three and one-tenth cents per hour, with a bonus. A monthly bonus was figured in as a part of the earnings for the last week of each month. This statement is not contradictory to the letter of the employer, for the employer did not undertake to say that the sum of $17.40 per week with bonus was the sum which the claimant received during the year, but only that this was the sum paid at the time of the accident. Aecording to the statement, the correctness of which is undisputed, the claimant earned, during the year prior to the accident with bonus figured in, the sum of $826, which, divided by fifty-two made an average weekly wage of $15.80. As the claimant regularly worked no more than five days a week, the methods of calculation given in subdivisions 1 and 2 of section 14 of the Workmen's Compensation Law could "not reasonably and fairly be applied." Therefore, the provisions of

subdivisions 3 and 4 of that section, which require that the sum which "shall reasonably represent the annual earning capacity " be taken as a basis, and divided by fifty-two, to determine the average weekly wages, became applicable. As said in Matter of Littler v. Fuller Co. (223 N. Y. 369): "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, subd. 3.) The true test is this: What were the average weekly earnings, regard being had to the known and recognized incidents of the employment, including the element of discontinuousness?" Since the actual annual earning capacity of the injured employee was $826, and his average weekly wages were $15.88, the amount which should have been allowed to the claimant was two-thirds thereof, or the sum of $10.59 per week for 244 weeks.

The award should be modified accordingly. Award modified as per opinion, and as so modified, unanimously affirmed.

A body builder in an automobile factory lost the use of his hand by accident. The Commission, using the method of subdivision three, determined that his average weekly wage exceeded $30 and awarded him compensation at the rate of $20 per week. Upon appeal, the employer company complained that the Commission's calculation included overtime work. The true basis, excluding overtime, was, it said, $4.50 for a ten hour day, which basis yielded $24.81 as the average weekly wage and $16.54 as the award rate. The Appellate Division unanimously affirmed the award, with opinion as follows:

SHAW V. AMERICAN BODY Co., 189 App. Div. 365, Nov. 12, 1919. LYON, J.: The award appealed from was of $20.00 per week for the permanent loss of the use of claimant's right hand. He was a body builder of automobiles. While engaged in the regular course of his employment on November 2, 1917, he cut the ball of the thumb of his right hand which became infected and in time involved the entire arm. On December 22 he and his employer entered into an agreement in regard to compensation which was duly approved by the Commission. On February 15, 1918, a medical examiner reported a permanent loss of the use of the hand, and advised a re-examination in three or four months. On June 7, 1918, a hearing was had and a re-examination of claimant's hand made. Dr. Lewy reported a loss of the use of the hand. Although the carrier was represented by counsel, no request or attempt to cross-examine Dr. Lewy was made. The representative of the carrier objected to an award being then made, although more than seven months had lapsed since the accident, claiming it was too soon to tell the extent of the injury, and also that the manner of computing the compensation was wrong. The Commission made an award of $20 per week. The carrier objected and on August 16th asked that the matter of wages be more fully covered. On November 15th evidence was taken as to the earnings of other men in the same line of work during the period of one

year prior to the time of the accident. At the hearing both parties were represented. From the award made on November 15, 1918, the date of the last hearing, more than one year after the accident, the appellants took this appeal.

The claimant had worked but forty-five days for the employer at the time of his injury. During this period his earnings had been $242.50, or an average of approximately $32 per week. It appeared that the average earnings of five employees in the same class for the year commencing January 1, 1917, had been $1,777.95. The Commission determined under subdivision 3 of section 14 that claimant's weekly wages were in excess of $30, and awarded compensation for the permanent loss of the use of claimant's hand at the rate of $20 per week. The evidence supports the finding of the Commission. The appellants at no time offered evidence as to the probability of improvement in the use of the hand. If, however, appellants should at any time claim that they are entitled to a modification of the award they can make application under section 22 for such modification.

In view of the fact that the claimant had worked for the employer only a short time, and the greater part of the work was piece work, I think the Commission was justified in determining his average weekly wage under subdivisions 3 and 4 of section 14, and that there is evidence to support the determination. The award should be affirmed. Award unanimously affirmed.

An employee worked throughout the summer as a coal passer upon the vessels of a transport line. His wages in such occupation were $80 a month. As the winter set in and the vessels were withdrawn from navigation he was assigned to the work of cleaning up boilers, with classification as a fireman at $4.50 per day. He had worked about six days at the new employment and was chipping scale in the consumption chamber of a boiler when a piece of scale struck his left eye. The Commission awarded him compensation for loss of his eye upon the $4.50 basis. Appeal having been taken, the employer argued that the employee's work was seasonal and that the case was governed by Littler v. Fuller Co., while the Attorney-General argued that the occupation at the time of the accident determined the wage basis, citing Minniece v. Terry Bros. The Littler and Minniece opinions are in Bulletin 95, pages 147-151. The Appellate Division, approving the appellant's argument, reversed the award and remitted the matter to the Commission, all concurring in the following opinion:

ROONEY V. GREAT LAKES TRANSIT CORP., 191 App. Div. 10, Mar. 3, 1920. COCHRANE, J.: Compensation in this case has been computed on an erroneous basis. The Commission finds that the average weekly wages of the claimant were $25.96. That is "one fifty-second part of his average annual earnings (Workmen's Compensation Law, § 14, subd. 4). Consequently his

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average annual earnings" should have been $1,350. In order to reach such result the Commission considered that his "average daily wage' was $4.50 and proceeding either under subdivision 1 or 2 of section 14 of the Workmen's Compensation Law multiplied such daily wage by 300. Neither of those subdivisions is applicable. The claimant entered the service of this employer May 24, 1918, and continued therein until the time of his injury, on December 22, 1918. He did not work, steadily however, but within the dates mentioned worked one hundred and nineteen and a half days earning, in the aggregate, including an allowance for board, $395.22. For six days prior to his accident he had been working as a fireman and receiving $4.50 a day or perhaps a little more. Prior to that time he had been a coal passer and received less compensation than when working as a fireman. Prior to May 24, 1918, it does not appear what he did or what if anything he earned. Any computation based on annual earnings of $1,350 for a claimant who for a period of about seven months actually earned less than $400 is in the absence of explanatory circumstances manifestly unreasonable and unfair. The Commission in an effort to bring the case within subdivision 2 of section 14 received evidence as to the compensation of firemen for a year previous to the accident based on steady employment. But there is no evidence that they were steadily employed and this claimant certainly was not steadily employed and had only been employed as a fireman six days. Subdivision 3 of section 14 provides that if subdivision 1 or 2 "cannot reasonably and fairly be applied" the annual earnings shall be such sum as "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" and shall be arrived at in the manner indicated in said subdivision 3. The true test is the average weekly earnings, regard being had to the known and recognized incidents of the employment, including the element of discontinuousness. (Matter of Littler v. Fuller Co., 223 N. Y. 369; Cohen v. Rothstein & Pitofsky, 176 App. Div. 35; Prentice v. New York State Railways, 181 id. 144.) Under the evidence here existing the annual earnings of the claimant should have been ascertained in the manner provided by subdivision 3 of section 14.

The award should be reversed and the matter remitted to the Commission. All concur. Award reversed and matter remitted to the Commission.

A woman did piece work for a glove factory at her home. While at the factory to get material, she fell down stairs and broke her leg. The Commission awarded compensation to her for ninety per cent of loss of the leg, finding that her average weekly wages had been nine dollars. Upon appeal, the employer urged that the Commission should have distinguished between the wages of piece workers and the wages of regular employees; that the average earnings of the piece workers were about $3 per week, and of regular ten hour workers not over $10 per week; that subdivision three and not subdivision one of § 14 was the proper

basis for her wage calculation. The court sustained the employer's contention with opinion as follows:

FOX V. BACHNOR BROS. Co., 191 App. Div. 706, May 5, 1920.

H. T. KELLOGG, J.: The claimant has been awarded compensation for ninety per cent of the loss of the use of the right leg, at a rate calculated upon the basis of a weekly wage of nine dollars. At the time of her injury she had been engaged in the manufacture of gloves for the period of five weeks. She fetched the gloves upon which she worked to her home, and there performed her work. The highest weekly wage she had earned was three dollars and sixty cents and the lowest was twenty-five cents. It is plain that this is not a case where weekly wages may be determined by applying the provision of subdivision 1 of section 14 of the Workmen's Compensation Law, for the reason that the claimant had not been employed substantially for a year immediately preceding the injury. As the claimant was new to the work it would also be unfair to estimate her weekly wages by using as a sole criterion the actual earnings made by her. We must have recourse, therefore, to subdivision 2 of the section, and take as a standard the average wages of an employee of the same class in a similar employment in the same or a neighboring place. It appeared without contradiction that employees in this vicinity who took gloves home for work thereupon averaged three dollars per week. It is provided in subdivision 5 of section 15 that for the loss of a leg the compensation awarded shall not be less than five dollars a week. This provision is immediately succeeded by the following condition: "provided, however, that if the employee's wages at the time of injury are less than five dollars per week he shall receive his full weekly wages." It is evident, therefore, that the compensation payable is three dollars per week, for under the method of determining wages which must be used here that is the sum which must be regarded as the "full weekly wages" of the claimant. The award is reversed and the claim remitted to the Commission for further action in the premises in accordance herewith. All concur. Award reversed and matter remitted to the Commission for further action.

A coal yard owner sent an employee upon an errand, which led him onto some railroad tracks. A freight train ran him down, killing him instantly. The Commission awarded death. benefits to his wife and four children, upon a finding that his average weekly wage had been $22.21. Upon appeal, the employer said that the employee, a drunken outcast who had not lived with or supported his family for three years, had been in his employ for only three weeks prior to the accident, during which period he had worked but nine days; and that the Commission should have taken his actual earnings under § 14, subd. 3, instead of the union schedule of $3.85 per day under § 14, subd. 2, as the basis for its wage calculation; the Appellate Division,