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Fortino v. Merchants' Dispatch Transp. Co.

156 N.Y.S. 262 Court N.Y. App. Div. Decision date 1915-11-10 English

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p. 262
FORTINO v. MERCHANTS’ DISPATCH TRANSP. CO.
(Supreme Court, Appellate Division, Third Department.
November 10, 1915.)

Headnote

Master and Servant <@=^250%, New, vol. 16 Key-No. Series—Injuries to Servant—Workmen’s Compensation Act—'“Loss of Finger.”
Where an injury resulted in the talcing off of a portion of the second ' phalange of plaintiff’s index finger by amputation, compensation for the injury must be made on the basis ,of the total loss of the finger.
<gz^>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes
Appeal from Workmen’s Compensation Commission.
Proceeding by Nicolo Fortino against the Merchants’ Dispatch Transportation Company for compensation for personal injuries under the Workmen’s Compensation Act (Consol. Laws, c. 67). From an award of the Workmen’s Compensation Commission, defendant apappeals.
Affirmed.
Argued before SMITH, P. J„ and KELLOGG, LYON, HOWARD, and WOODWARD, JJ.
Harris, Beach, Harris & Matson, of Rochester (Daniel M. Beach, of Rochester, of counsel), for appellant.
Jeremiah E. Connor, of New York City, Counsel to Workmen’s Compensation Commission, and
Egburt E. Woodbury, Atty. Gen. (Harold J. Hinman, Deputy Atty. Gen., of counsel), for respondent.

The claimant in the present proceeding has an award as for the total loss of the index finger of his left hand, the amputation made necessary by the injury resulting in the taking of a portion of tlie second phalange of the finger. Unless this court is to withdraw from the deliberate reasoning in Matter of Petrie, 165 App. Div. 561 , 151 N. Y. Supp. 307 , where we attempted to reach the true construction of the statute, the determination of the commission must be approved in this case. We are the more willing to reach this conclusion in view of the fact that any other construction would require a holding that this injury comes within “other cases,” as defined in

p. 263
the statute, and might result, as was claimed in Matter of Feinman, 155 N. Y. Supp. 909 (decided at the present term), in a continuing liability largely in excess of that provided by the statute for the entire loss of a finger. We think the appellant would not care to have the rule extended beyond the limitations which are being worked out, and it is not the policy of the law to involve claimants or insurance carriers in uncertain liabilities.

The award should be affirmed.

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