Minniece v. Terry Bros.

Headnote

Minniece v. Terry Brothers Co., 179 App. Div. 949 ,-affirmed.

Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered August 28, 1917, affirming an award of the state industrial commission made under the Workmen’s Compensation Act. James Minniece had worked for the Terry Brothers Company, brickmakers, for eleven years. During all of that period his work was seasonal; that is to say, for a part of each year he worked as a moulder, and for the remainder of the year he worked as a laborer, and he received a different rate of wages for the different kinds of work. While he was engaged as a moulder he received injuries which resulted in his death. His widow has claimed compensation," which the commission has awarded upon the basis of the wages he received as a moulder. The question was presented as to what was the proper basis for compensation of a man whose employment during a long period of time had regularly involved a semi-annual seasonal change in the character of the work done, with a resulting change in wages. The appellants contended that in such a situation compensation should be based upon the average of his actual earnings during the year, whereas the commission awarded compensation upon the basis of the wages he was receiving at the time of his death.