Opinion
December 29, 1949.
Appeal from Workmen's Compensation Board.
It is not disputed in this record that the Schenectady Boys Club, Inc., is a membership corporation incorporated to promote the mental, moral, social and physical welfare of boys. For this purpose it maintains a building. Claimant was employed to instruct boys once a week as an instructor in woodworking. He thus came literally within the exception of the omnibus provision of group 18 of subdivision 1 of section 3 Work. Comp. of the Workmen's Compensation Law. This excludes from coverage a person "engaged in a teaching or nonmanual capacity in or for a religious, charitable or educational institution". Claimant was working for a charitable and educational institution in a teaching capacity. That his teaching was manual and not nonmanual is not controlling. One full test of the statute is met by his teaching. The statute uses "or" not "and". The words "or nonmanual" would not be operative unless the work was not teaching. After the board had decided that claimant was covered by the statute and made an award, and after an appeal from the decision and award had been taken to this court, the board rescinded and modified its award to reduce it somewhat. No separate appeal has been taken from the award as finally made, but the continuing power of the board to modify or change its awards was suspended during the pendency of the appeal as to questions raised by the appeal, although in other respects its power over decisions and awards was unaffected. The modification did not affect the basic question of coverage raised on the appeal which is here on the merits, and the point made by the board that the appeal is academic is not tenable. The board is bound to honor judicial decisions on appeals from its awards ( Matter of Anderson v. Johnson Lighterage Co., 241 N.Y. 523). When the board's continuing jurisdiction conflicts with a prior judicial determination, it may act only in a changed situation ( Matter of Di Donato v. Rosenberg, 256 N.Y. 412). The power which is thus terminated after the appeal is decided, must necessarily be suspended during the pendency of the appeal as to questions raised thereby ( Matter of Crandall, 218 App. Div. 190; Kirkpatrick Home for Childless Women v. Kenyon, 209 App. Div. 179; Waldo v. Schmidt, 200 N.Y. 199). Decision and award reversed and claim dismissed, without costs. Foster, P.J., Heffernan, Brewster, Deyo and Bergan, JJ., concur.