Opinion
277 A.D. 194 98 N.Y.S.2d 793 GOLDMAN v. PALMERs&sOLIVER, Inc., et al. Supreme Court of New York, Third Department June 27, 1950
Proceeding under the Workmen's Compensation Law by Reuben Goldman, claimant, opposed by Palmers&sOliver, Inc., employer, and the New York Printerss&sBookbinders Mutual Insurance Company, insurance carrier. From an award of compensation by the Workmen's Compensation Board in favor of claimant, the employer and insurance carrier appealed. The Appellate Division, Deyo, J., held that the fact that claimant received full wages during his disability, in absence of request by employer for reimbursement did not bar award of compensation.
Award affirmed.
Michael Jacowitz, Brooklyn, for claimant-respondent.
Frederick Behr, New York City (Frederick Behr, Jr., New York City, of counsel), for appellants.
Nathaniel L. Goldstein, Atty. Gen. (Roy Wiedersum and Daniel Polansky, Asst. Attys. Gen., of counsel), for respondent Workmen's Comp. Board.
Before FOSTER, P. J., and BREWSTER, DEYO, BERGAN, and COON, JJ.
DEYO, Justice.
This is an appeal by the employer and carrier from an award of compensation. Claimant suffered injuries when he slipped and fell on some ice in a public street near his home. There was evidence from which the board could find that claimant's duties included making calls outside the plant where he worked and that he was on his way to make such a call when the accident occurred. Under such circumstances it is immaterial that he was following the same route which he customarily followed from his home to his place of employment and that he had not deviated therefrom in order to make the intended call. Kristianson v. Lehman, 287 N.Y. 569, 38 N.E.2d 230; Skolnick v. Elgin Chair, Inc., 273 A.D. 833, 75 N.Y.S.2d 840. Earlier decisions to the contrary, Marks' Dependents v. Gray, 251 N.Y. 90, 167 N.E. 181; Bennett v. Marine Works, Inc., 273 N.Y. 429, 432, 7 N.E.2d 847, 848, are no longer the law. The fact that claimant received full wages during his disability and that the employer has not asked for reimbursement is of no moment. Although the earlier cases forbade any award under such circumstances on the theory that the Workmen's Compensation Law was not intended as a source of profit to the employee, Sullivan v. G. B. Seely Son, Inc. 226 A.D. 629, 236 N.Y.S. 377, affirmed 252 N.Y. 621, 170 N.E. 167, the statute has now been amended to permit such a result. § 25, W.C.L., as amended by Ch. 316, § 3, Laws of 1930; Wrubel v. Surprise Press, 277 A.D. 192, 98 N.Y.S.2d 791, decided herewith. The right to compensation under such circumstances has been recognized by the more recent decisions. Poveromo v. Taylor, 275 A.D. 518, 90 N.Y.S.2d 318, affirmed 301 N.Y. 513, 93 N.E.2d 74; Matter of Dodd v. The Great Atlantic and Pacific Tea Company, 247 A.D. 831, 286 N.Y.S. 46.
The award should be affirmed with costs to the Workmen's Compensation Board.
Award affirmed, with costs to the Workmen's Compensation Board.