Opinion
June 16, 1961
Appeal by the employer and its carrier from a decision and award of the Workmen's Compensation Board. Decedent was killed while in the course of his employment on April 16, 1956. The sole question presented on appeal is the finding of partial dependency of decedent's father, it being conceded that the mother is not dependent. Decedent was 19 years old at the time of his death and had graduated from high school in June of 1955. During the remainder of 1955 he worked for another employer during which time he contributed $12 to $35 per week to the family which consisted only of his parents and himself. Decedent went to work for the appellant employer on February 20, 1956 and was fatally injured on April 16, 1956. At approximately the same time decedent began work for the appellant, his father due to advancing blindness was forced to give up his employment. At the time of his son's death in April the father was receiving $85 per month Social Security with the possibility of being able to receive a further $78 per month veterans' pension. During 1955 decedent's parents had an adjusted gross income of $5,209, of which the father had contributed $2,668 or roughly $200 per month. By comparison the father would receive only $163 a month from Social Security and the veterans' pension or $37 less per month than the 1955 average. The father claims that decedent's contributions to the family would have made up the difference between what the father had earned in 1955 and what he was receiving thereafter. This would only be true, however, if the contributions by the decedent were utilized to support the general family maintenance as opposed to being equal only to decedent's own support, i.e., compensation for room and board ( Matter of Kelley v. Hoefler Ice Cream Co., 196 App. Div. 800). While dependency is ordinarily a question of fact not to be disturbed on appeal ( Matter of Hunter v. Goodstein Bros., 2 A.D.2d 387), where such a finding is "incredible" based upon the evidence it cannot be upheld ( Matter of Farmer v. Coffee Instants, 12 A.D.2d 840). There is absolutely no evidence in the record as to the family's expenses as compared with its income or the effect of the loss of the son's contributions on the family budget. If there was proof that the loss of these contributions would cause the family to be unable to meet its normal living expenses ( Matter of Parkinson v. Lavina, 297 N.Y. 853; Matter of Duffy v. Girard Trust Co., 275 App. Div. 1009, motion for leave to appeal denied 300 N.Y. 760) or that the standard of living had been lowered ( Matter of Horn v. Curtiss-Wright Corp., 297 N.Y. 667) the board could be affirmed but there is no evidence concerning income and expenses before the son's death upon which could be predicated the effect of the deprivation of his contributions. (See Matter of McGinty v. American Chimney Corp., 12 A.D.2d 712.) The 1955 income tax return for the Martorana family does not give any substantial help in remedying this defect. Decision and award reversed and case remitted to the Workmen's Compensation Board, with costs to appellants. Gibson, Herlihy, Reynolds and Taylor, JJ., concur.