Claim of Spaduccino v. John G. Hayes & Co.

Headnote

'Spaduccino v. Hayes & Co., 180 App. Div. 37 , affirmed.

Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered November 13, 1917, affirming an award of the state industrial commission made under the Workmen’s Compensation Law. An alien, whose widow and child resided in Italy, received injuries while in the employ of defendant Hayes & Co., resulting in his death. The widow and child thereafter came to this country and on their application an award was made to them under the Workmen’s Compensation Law payable bi-weekly. Thereafter, the widow having testified that she did not intend to remain in this country, the commission, under section 17 of the Workmen’s Compensation Law, as amended by chapter 622 of the Laws of 1916, upon the request of the insurance carrier, commuted the future payments of compensation at the present 'value, and directed that the same be paid in a lump sum on the basis of fifty per cent thereof.

Later it appeared to the commission that the widow had changed her mind as to returning to Italy and had decided that she and her child would remain in this country. The commission thereupon made findings and entered an award corresponding to the original award, stating therein that in commuting the payments of compensation to a lump sum the commission had acted upon an error of fact, and that the resolution of commutation and the commutation were thereby rescinded. From such decision and award this appeal has been taken. The question narrows down to what time is to be selected as the determining point of whether the claimants or dependents are resident or non-resident aliens, appellants contending that residence should be determined as of the time of the injury and death.