WILL- Continued.

lives, and to pay the balance in equal shares to his sons Lester and Ralph
until the latter should attain the age of thirty years. At such time the
executors were to set aside two separate sums to provide for the payment
of income to Julia and Percy, and to divide the residue equally between
Lester and Ralph, and upon the death of Julia or Percy to divide the fund
set apart similarly between Lester and Ralph. The testator then provided
that if either Lester or Ralph "shall die before the division of my estate
between them as directed to be made by the third and fourth paragraphs
hereof, then the share or interest of the one so dying shall go to his heirs,
executors and administrators, absolutely and forever; and if my son Ralph
shall die before attaining the age of thirty years, then said division shall
take place as soon as my son Lester * * shall have reached that
age.
Ralph subsequently married and died in his twenty-sixth year
and before the testator. At the death of the testator, Lester was over
thirty years of age.

#

Held, that the testator intended that the gift made for the son dying
should go to his "heirs, executors and administrators," and that, there-
fore, the residuary estate and remainder of the trust fund after the termi-
nation of the life estate of Ralph belonged in part to his estate. Matter of
Gilman, 185.

-

*

*

2. Power of sale — failure of executors to give bond as required by will
-real property — contract to purchase lands from executors - specific
performance. Where a will empowering the executors to sell real estate,
but not creating any trust, directed that the executors "shall be required
to furnish or give bonds *
for the faithful performance of their
duties," but the surrogate, on probate, issued letters testamentary to the
executors without requiring them to give bonds, their failure to do so did
not impair their authority to enter into a contract for the sale of the dece-
dent's real estate, and, hence, the vendee will be required to complete his
contract to purchase. Sandford v. Bronx Boro Builders, Inc., 384.

3. Decree refusing probate upon ground that testator was non-resident
reversed-proof establishing that decedent was resident of this State-
mentally incompetent cannot have intention to change domicile — evidence
- presumption that original domicile continues - appeal - power of
Appellate Division on appeal from decree of Surrogate's Court. Appeal
from a decree of the Surrogate's Court denying probate to a will upon
the ground that the testator had changed his residence to a foreign State,
in which State a later will had been admitted to probate. The dece-
dent, when over eighty years of age and apparently impaired both
physically and mentally, had married a woman, resident of the foreign
State, but after a short period had returned to this State to live with
his daughter, the proponent of the prior will. Evidence examined, and
held, that a finding that the decedent had changed his residence to the
foreign State was clearly against the weight of the evidence, and that a
contrary finding should have been made.

As the decedent had been continuously a resident of this State for nearly
eighty years, his original domicile is presumed to continue, and the bur-
den to establish affirmatively that he intended to change his domicile
was upon the contestant.

If from the time the decedent went to the foreign State until the date of
his death he was mentally incompetent to form or have an intention to
change his domicile, he was powerless to change the same.

While the Appellate Division has power, under section 2763 of the Code
of Civil Procedure, to decide the questions of fact involved upon the evi-
dence, and to determine that the decedent was still domiciled in this
State at the time of his death, the case will be remitted to the Surro-
gate's Court for a new trial, as the contestant may elect not to stand
upon the record of the foreign probate of the later will, and may attempt
to prove the same in the Surrogate's Court. Matter of Horton, 447.

Petition to set aside probate - evidence of relationship.
See DECEDENT'S ESTATE. 4.

WORKMEN'S COMPENSATION LAW.

1. Injury to employee engaged to guard steamship cargoes — employ-
ment not hazardous. A company engaged in the business of supplying
watchmen to steamship companies for the sole purpose of guarding their
cargoes is not engaged as a longshoreman, nor is the watchman furnished
a longshoreman, nor is the occupation of said watchman a hazardous
employment within the meaning of the statute. Hence, where such
watchman while engaged in his duties on a pier was injured by an
accidental fall, he is not entitled to an award.

To justify an award it is not only necessary that the employer be
engaged in a hazardous occupation, but the employee must likewise be
engaged in a hazardous employment.

It is the character of the employment, not the particular place where
the accident happened, which determines the classification. Oberg v.
Roberts & Co., 1.

2. Statute construed - award for permanent partial disability, and
also for temporary total disability from same accident approved - com-
pensation for temporary disability while disabled by permanent disabil-
ity and being compensated therefor—appeal — determination by Com-
mission of questions of fact final. Where a wood worker while cutting a
piece of wood with a circular saw accidentally cut off his second finger and
severely lacerated his thumb and index finger, and the State Industrial
Commission found as a conclusion of fact that the injuries to his thumb
and finger, irrespective of the loss of his second finger, would have dis-
abled him for a period of ten weeks from the time of the accident, an
award for the injuries to his thumb and index finger of two-thirds wages
for a period of eight weeks and for the loss of his second finger of two-
thirds wages for the further and subsequent period of thirty weeks, should
be affirmed.

An employee entitled to compensation for permanent partial disability
may also be allowed compensation for temporary total disability for injur-
ies arising out of the same accident and terminating within the period of
the running of the award for permanent partial disability.

A claimant is not entitled to receive any compensation on account of
temporary disability while being disabled from working by reason of the
permanent disabilities and being compensated therefor.

The determination by the State Industrial Commission of the period of
disability of a claimant is one of fact and is final.

The application of the provision of section 15 of the Workmen's Compen-
sation Law to the effect that compensation for the specific injuries consti-
tuting permanent partial disability shall be in lieu of all other compensa-
tion, is limited to such specific injuries. Marhoffer v. Marhoffer, 52.

3. Hazardous employment - employment by farmer of neighbor to make
repairs to barn-farm laborers" defined. Where a farmer employed a
neighbor who occupied an adjoining farm and often took odd jobs for
repair work to make some repairs to his dairy barn, and said employee was
injured by the collapse of staging used while placing slate on the roof, the
employer was not at the time of the injury engaged in a hazardous employ-
ment within the meaning of the Workmen's Compensation Law, because,
first, the employer was not engaged in structural carpentry, roofing or
the construction and repair of buildings for pecuniary gain, and, second,
the employee was a "farm laborer."

The fact that the employment was only temporary, for the particular
job, is immaterial.

Farin laborers," within the meaning of the Workmen's Compensation
Law, defined. Coleman v. Bartholomew, 122.

4. Right of employee suffering from result of cerebral hemorrhage to com-
pensation. A person employed as a bottler, seized with a stroke of apoplexy
by reason of the strain occasioned by lifting a barrel which he was assisting
another in placing on the third tier, which resulted in a cerebral hemor-
rhage, suffered an accidental injury arising out of and in the course of
his employment, within the intent and meaning of the Workmen's Com-
pensation Law, especially where it appears that it was usual to pile the
barrels only two tiers high; that said employee had always been in good
health; that while raising the barrel he felt dizzy, and had severe pains
in the head.

WORKMEN'S COMPENSATION LAW - Continued.

The statute does not require that the nature of the injushall be such
as to present a visible or external sign. Fowler v. R. prph Bottling
Co., 224.

--

5. Award for injury not causing death to be paid in installments
death of person not injured before total award is paid - right to award
does not survive or vest in decedent's personal representatives or depend-
ents - Workmen's Compensation Law construed distinction between
awards for injuries not causing death and those having that result.
An award for the loss of an eye, made to the person injured, which con-
sists of a certain number of bi-weekly payments for a specified number
of weeks, abates as to unpaid installments not yet due, where the per-
son injured dies from causes other than the injury, and hence those
dependent upon him are not entitled to receive the balance of the
award.

Under the statute the Industrial Commission has no power to make the
aggregate sum of such bi-weekly payments due at the time of the
award so as to create a vested right in future payments which survives
the claimant's death.

Although section 25 of the statute provides that the payments made
under certain conditions be commuted to one or more lump-sum pay-
ments, such commutation involves a reduction in the total amount of
the award as determined by its present value based upon the proba-
bilities of continuing life.

The statute makes a radical distinction between awards made to a per-
son injured and awards made to the dependents of a person where the
injury results in death. Wozneak v. Buffalo Gas Co., 268.

6. When relation of employer and employee exists within meaning of
statute - hiring of team and driver from another. Where a construction
company hires a team and driver from another and places them under
the control and direction of its foreman, and said company, although
having no authority to discharge the driver, has power to refuse to
continue him and the team in its service, said driver will be held to be in
the employ of the company within the meaning of the Workmen's Com-
pensation Law. Dale v. Hual Construction Co., 284.

7. Loss of vision of eighty per cent of eye held equal to loss of use of eye.
Conclusion of the State Industrial Commission that the loss of the vision
of eighty per cent of an eye is equal to the loss of the use of the eye for
vocational purposes, approved. Boscarino v. Carfagno & Dragonette,
Inc., 286.

8. Statute contemplates periodical payments save under exceptional
circumstances - commutation of periodical payments- statute construed
Commission may not adopt rule requiring lump-sum payment in all
death cases tables of mortality - Carlisle table followed in this State.
The basic theory of the Workmen's Compensation Law is the periodical
payments of compensation or death benefits, and the power of the Com-
mission to commute such periodical payments to one or more lump sum
payments, either in the case of injury or death, as permitted by sections
25 and 27 of the statute, is only intended to be exercised in particular
and exceptional instances where justice will be promoted by a departure
from the general rule.

Hence, the State Industrial Commission has no power under section 27 of
the statute to pass a rule applicable to all cases by which mutual com-
pensation insurance companies and all self-insurers are required to pay
into the State fund the present value of future installments under
awards in death cases.

Moreover, in computing the present value of periodical payments, the
Commission has no authority to base the sum upon the Survivorship
Annuitants Table of Mortality," and "the remarriage rate of the Dutch
Royal Insurance Institution" for said table and rate have not received
recognition by the courts of this State which have adopted and given
judicial sanction to the Carlisle table.

It seems, that in order to justify a direction for the payment of a lup
sum instead of periodical payments the decision of the Commissioners
must show facts which establish that the lump-sum payment is "in the

APP. DIV.-VOL. CLXXV 67

WORKMENS (COMPENSATION LAW - Continued.

interest of ju " and it must also appear that the Commission has
properly compared "the present value of all future payments with due
regard for life contingencies."

It seems, also, that no set of rules can be devised to apply indiscrimi-
nately to all cases, or to a certain class of cases. Adams v. New York,
Ontario & Western R. Co., 714.

-

-

9. Injury to night watchman employed in bakery — injury when plant
is not in operation night watchman not engaged in hazardous employ-
ment. Although the business of baking is a hazardous employment within
section 2 of the Workmen's Compensation Law a night watchman
employed in a bakery who was injured in the night time by falling down
a stairway when the plant was not in operation, and who was merely
performing the ordinary duties of a night watchman, was not at the
time engaged in a hazardous employment and is not entitled to an
award under the Workmen's Compensation Law. Fogarty v. National
Biscuit Co., 729.

10. Injury to employees of brewery while delivering beer — when
remedy under Workmen's Compensation Law exclusive. Where the
driver of a motor truck employed by a brewery company to deliver
beer was injured by a defective sidewalk elevator upon saloon premises
which, although some distance from the defendant's, was owned by
the defendant, the injury was not caused by the negligence of a third
party but through that of plaintiff's employer, and hence, it having
complied with the Workmen's Compensation Law, the employee cannot
maintain a common-law action but is restricted to a proceeding under
the statute. Winter v. Doelger Brewing Co., Inc., 796.

11. Injury to employee of dealer in antiques — injury while hanging
picture when employee not engaged in " decorating" under former
statute cutting moulding to frame picture is not manufacturing a
moulding. A person employed by a dealer in antique furniture, pictures,
bric-a-brac, etc., who was sent out at times to hang pictures sold by his
employer and who was injured while so engaged, was not "decorating”
a building under group 42 as it stood prior to the amendment made in 1916
and is not entitled to an award under the Workmen's Compensation Law.
Although said employee was at times required to cut down mouldings
which had already been made into frames in order to make the frame fit
a picture sold by his employer, he was not within group 17 which includes
persons engaged in manufacturing mouldings and is not entitled to an
award under said section. Grasell v. Brodhead, 874.

12. Death of person employed in retail department store — injury while
loading barrel on hand truck-former statute construed. A person
employed in a retail department store at a time when such business was
not classified as a hazardous employment and engaged in loading mer-
chandise on hand trucks in the basement of the establishment was not
engaged in a hazardous employment under group 41 which relates to the
operation of vehicles not running on tracks and propelled by power or
drawn by animals. Hence, where a nail in the bottoin of a barrel which he
was placing on a truck pierced his finger, resulting in blood poisoning, he is
not entitled to an award under the Workmen's Compensation Law.

Said group 41, as it existed prior to the amendment made by chapter
622 of the Laws of 1916, did not relate to the operation of hand-drawn
vehicles not running upon tracks. Holtz v. Greenhut & Co., 878.

Lumbering injury by fall of tree.

Matter of Claremont v. De Coss, 952.

Janitor - operation of boiler.

Matter of Siegfreid v. Goldberg, 952.

YONKERS, CITY OF.

Charter construed-street paving
tion for particular kind of pavement.

See MUNICIPAL CORPORATION, 6.

right of abutting owners to peti-