Claim of Calamari v. Winston & Co.

Headnote

Calamari v. Winston & Co., 184 App. Div 923 , affirmed.

Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department,

entered May 21, 1918, affirming an award of the state industrial commission made under the Workmen’s Compensation Law. Domenico Semproni was killed while in the course of his employment by defendant. A claim for compensation was made in behalf of his widow and children by Luigi Sillitti, royal vice-consul of Italy, at New York city, on the 30th day of July, 1915. An award was made on May 24, 1916 without any hearing. It appearing, however, that Winston & Company failed to receive notice of the hearing, application was made that the case be re-opened and the same was re-opened on March 15, 1917. On the rehearing it was shown that Dr. Bacelli had been appointed ‘administrator of the estate of the deceased workman on November 4, 1915. It appeared that Dr. Bacelli was the consular agent at Albany for the Albany district and-was under the supervision of the consul general of the kingdom of Italy at New York. On the 9th of November, 1915, Winston & Co. gave a check to Dr. Bacelli, as administrator, for $1,000 and took from him a receipt and release of any cause of action against the defendant. The claim for compensation presented on July 30, 1915, had never been withdrawn and the Italian vice-consul was at all times ready to proceed with the claim. The $1,000 was not accepted by the Italian consul of New York and is now being held by the said Bacelli. The question was whether the alleged settlement was a bar to this proceeding.