sustaining the employer's contention that the Commission should have calculated his wages under subdivision three, reversed the award, unanimously and without opinion, and remitted the proceedings to the Commission: Post v. Wood Coal Co., Case No. 11943, Aug 11, 1919; - App. Div.-, May 5, 1920.

A farm laborer hired out to an orchard owner to pick apples under an election for compensation in accordance with Workmen's Compensation Law, § 2, gr. 45. After having worked for' two or three weeks, he fell from a tree and crippled himself. From an award for reduced earnings based upon an average weekly wage of $17.31, the employer took an appeal. The employer said that the work of a farm laborer was discontinuous; that this particular employee had been doing odd jobs from farm to farm and admitted that he had never received more than $500 in any one year, that the Commission should have used § 14, subd. 3, for its wage calculation, instead of § 14, subd. 1. The Attorney-General replied that the employee's board figured in the case and that he had been. a steady worker. The Appellate Division affirmed the award unanimously and without opinion: Miner v. Porter, Case No. 11550, Oct 20, 1919; - App. Div., May 5, 1920.

While a factory employee was oiling a machine, the foreman ordered the power turned on and he was thrown to the floor. For injuries resulting in loss of one-fourth of his left hand, the Commission awarded compensation to him for 61 weeks at the rate $15.58. It found that his average weekly wage had been $23.37. Upon appeal, the employer claimed that the employee had not worked substantially the whole of the year preceding and that therefore the Commission should have used § 14, subd. 3, for its calculation instead of § 14, subd. 1. The evidence showed that the employee had worked 2311⁄2 days during the year preceding and had received $940.56. The Commission divided the $940.56 by 2312 and multiplied by 300. The employer claimed that the award rate should have been $12.06 under subd. 3, not $15.58 under subd. 1. The Appellate Division sustained the employer's contention, modified the award to $12.06 per week and, as modified, affirmed it unanimously and without opinion: Pellerkin v. Enterprise Garnetting Co., Case No. 12129-A, Nov. 19, 1919; -App. Div.-, May 5, 1920.

B. FIVE AND ONE-HALF DAY WORKERS

A card cleaner in a yarn mill caught his hand in a machine. The Commission found that his average weekly wages had been $22.61 and awarded him compensation for 244 weeks for loss of use of the hand at a rate of $15.08 per week. The mill regularly gave Saturday afternoon to its employees as a half-holiday. The Commission divided the injured employee's actual weekly wage by five and one-half and multiplied by three hundred to get his average annual earnings. Upon appeal, the employer argued that it should either have used six as the divisor or two hundred and seventy-five as the multiplier, otherwise the employer was penalized for giving his employees the half-holiday. The Appellate Division reversed the award and remitted the matter to the Commission, with opinion as follows:

ROSKIE V. AMSTERDAM YARN MILLS, 191 App. Div. 649, May 5, 1920. WOODWARD, J.: The claimant has been awarded $15.08 per week for a period of two hundred and forty-four weeks for the loss of a hand. There is no question as to the injury or the liability of the employer and the insurance carrier, and the only question presented is the rule governing the determination of the weekly wages of the claimant. It appears from the record that with a basic week of fifty-four hours the employees of the Amsterdam Yarn Mills have worked ten hours per day for five days, and four hours on Saturdays, and these were the hours of the claimant. The claimant had been at work only three weeks at the time of the accident, and it became necessary to resort to the rule laid down in subdivision 2 of section 14 of the Workmen's Compensation Law, and the schedule of wages of a fellow-employee, one Charles Morrell, was filed with the Commission, showing his wages for a period of forty-five weeks, amounting to $969.31. This was at the rate of $21.54 per week, and it is conceded that these earnings fairly represented those of similar employees with the claimant. The Commission, starting with this average weekly wage of $21.54, divided it, not by the six working days of the week, but by five and one-half days, making the average daily wages $3.92, and then by multiplying this average daily wage by three hundred, it arrives at a total of $1,176 as the annual earnings of the claimant. Dividing this sum by the fifty-two weeks of the year the average weekly wage, which started at $21.54, has been increased to $22.61, and the Commission has fixed the compensation at two-thirds of this sum, or $15.08 per week, while if the original division had been made by the six days of the week the result would have been an award of $13.81, or a total difference of $308.88 for the term of two hundred and forty-four weeks.

It does not appear from the record that Charles Morrell worked any other

or different hours than the claimant. Presumptively he worked ten hours per day for five days and then four hours on Saturdays, the same as the claimant. There does not appear to have been any calculation on the basis of five and a half days in fixing his weekly wages, but when it came to the claimant the Commission set up a new rule, and determined that he only worked five and one-half days a week, and that his daily wages must be determined on this basis. This is obviously an erroneous rule. The week which employees were called upon to work consisted by usage of five ten-hour days and one four-hour day. In other words the day's labor consisted of nine hours application, or fifty-four hours for the week, while the usage of this particular mill-brought about principally by the employees themselves in conjunction with others was to divide the time as above set forth. But the contract of employment was for a week of fifty-four hours, and the manner in which this was accomplished did not operate to limit the employment to five and one-half days. As said by the United States Supreme Court (Renner v. Bank of Columbia, 9 Wheaton, 581, 586) "the common law knows no fractions of a day; custom, however, and that introduced, too, principally by the banks, has limited the day to a few hours of business," and this custom enters into the contract. The question before the Commission was not how the employees divided up the week but what was the earning capacity of the claimant per week. He worked some part of six days, and what he could earn in that time was the weekly wages of the employment. "The award should not exceed two-thirds of the earning capacity." (Littler v. Fuller Co., 223 N. Y. 369, 372.) The true test, say the court in the case cited, is What were the average weekly earnings, regard being had to the known and recognized incidents of the employment, including the element of discontinuousness? "

The award should be reversed and the matter sent back to the State Industrial Commission to adjust the compensation upon the basis of the weekly earnings of the claimant or his representative employee. All concur. Award reversed and proceeding remitted to the Commission to adjust compensation upon the basis of the weekly earnings of the claimant or his representative employee.

C. INCREASE OF WAGES DURING THE YEAR PRECEDING

An employer engaged in tanning calf skins transferred a woman employee from a drying machine to a roller machine. Upon the first forenoon of her new work she caught her hand in the machine, losing two fingers and suffering other injuries. The Commission found that her average weekly wage had been $28.84 and awarded disability compensation to her at the rate of $16.23 per week. Upon appeal, the employer objected that the Commission should have used her wages as a drying machine operator as the basis of its computation, which wages had not exceeded $25 per week. In reply, her attorneys said that she had gone to work upon the new

machine under a promise of piece work rates, amounting to an increase of pay. The Appellate Division, sustaining the employer's objection, reversed the award and remitted the matter to the Commission, with opinion as follows:

VAUGHN V. BARNET LEATHER Co., 191 APP. Drv. 652, May 5, 1920. WOODWARD, J.: The claimant was injured while at work on a rolling machine in the Barnet Leather Company's factory, and there is no question as to the character of the injuries. The State Industrial Commission has found that the average weekly wages of Ella Vaughn was the sum of $28.84, and the award is of $16.23 per week for twenty-one weeks, and the case held open to determine later the full extent of the injury. The insurance carrier and the employer, on this appeal, contend that the finding that the average weekly wages of the claimant was $28.84 is without support in the evidence, and we agree with this contention.

The evidence of the claimant herself is that she was receiving at the time of the injury $2.50 per day, and this is corroborated by the payrolls of the Barnet Leather Company. It appears from the evidence that on the 13th of January, 1919, there was a strike of the male employees of the company; that the men who were operating the machines such as the claimant was operating at the time of her injury were being paid for piece work, and that some of them earned from $23 to $27 per week. On the 30th day of January the claimant was called from a room where she was earning between $10 and $11 per week, and was instructed in the operation of the rolling machine. After a short period of instruction she was left to operate the machine alone, and received the injuries for which the allowance is made. Aside from some vague testimony from a foreman, that so far as he knew it had been the custom in that mill to put men at piece work after a few weeks of experience, there was no evidence to show that there was any understanding on the part of the claimant or her employer that the wages should be other than $2.50 per day. The claimant did say that there was one woman working in a different department, upon a different machine, who was getting $33 per week, but the name of the woman was not disclosed, nor was there anything to indicate that this was the customary wages of employees on the class of machines on which the claimant was at work, and the undisputed testimony was that three other women, employed upon these machines, were paid not to exceed $2.50 per day. The claimant was concededly working at the rate of $2.50 per day; she had not had sufficient experience to be put on piece work even under the practice which prevailed among the men prior to the strike, and there is absolutely no evidence in the case from which the figures found by the State Industrial Commission can be supported. The highest figures shown by the evidence for any of the men for any sustained period of time was $25.83 per week, and the undisputed evidence is that there is now no piece work done on these machines; that none was being done at the time of the accident, and that the wages paid to the woman operatives was $2.50 per day.

So far as we can discover from a reading of the testimony the finding of the average weekly wages of the claimant is purely arbitrary; there is

no evidence to suggest or support the sum of $28.84, and the case should be sent back for correction in this regard.

The award appealed from should be reversed, and the matter remitted to the State Industrial Commission. All concur. Award reversed and matter remitted to the Commission.

D. CHANGES IN AWARDS NOT RETROACTIVE

Modification of an award upon review is applicable only to the present and the future. Time past is governed by the preceding award or awards. Retroactive awards are forbidden by the final sentence of Workmen's Compensation Law, § 22, relative to review of an award, which reads: "No such review shall affect such award as regards any money already paid." The Court of Appeals has so held in a case in which the Commission had awarded death benefits at $2.45 per week on May 21, 1917, and had increased the rate to $3.75 per week on October 16, 1918. The Commission, upon the review, had held that the insurance carrier must pay the dependent the difference between the $2.45 per week and $3.75 per week for the period from May 21, 1917, to October 16, 1918, as well as $3.75 from October 16, 1918, onward. The Appellate Division had unanimously affirmed this award. The Court of Appeals modified it to provide that the increase should not take effect prior to October 16, 1918, and, so modified, affirmed it: Solotar v. Neuglass & Co., Death Case, No. 33580, Oct. 16, 1918; 186 App. Div. 942, May 7, 1919; -N. Y. Rep., Jan. 20,

1920.

E. TIPS AS PART OF WAGES

In awarding compensation to a railway sleeping car porter the Commission counted his tips as part of his wages. The Appellate Division affirmed the award with opinion expressly approving inclusion of the tips (Bulletin 95, pp. 221, 222). The Court of Appeals affirmed the Appellate Division's order without opinion: Bryant v. Pullman Co., S. Da R., vol. 19, p. 456, Feb. 18, 1919; 188 App. Div. 311, June 20, 1919; 228 N. Y. Rep.- March 19, 1920.

F. MINOR'S EXPECTED WAGE INCREASE

In the above case of Solotar v. Neuglass Co., the decision of the Court of Appeals is to effect that, the Commission having made an award in the case of a minor employee injured by industrial