Opinion
January 8, 1919.
William Dike Reed [ William Warren Dimmick of counsel], for the appellants.
Merton E. Lewis, Attorney-General [ E.C. Aiken, Deputy Attorney-General, of counsel], and Robert W. Bonynge, counsel for the State Industrial Commission, for the respondents.
The appeal is not properly before this court for hearing. The Commission made the award of date July 8, 1918, to Harold C. Waite, for forty-one weeks covering the period from August 28, 1916, to June 11, 1917, evidently erroneously stated in the findings as July 11, 1917, and continued the claim for further hearing, the Commission stating, "it appearing that Harold C. Waite claimant herein died on or about August 9, 1917, said award is directed to be paid to the estate of Harold C. Waite, deceased."
The law and practice of this court require that following the death of the plaintiff a substitution must be had of a representative of the estate before an appeal can be heard. It was recently held by the Court of Appeals in Matter of O'Esau v. Bliss Co. ( 224 N.Y. 701) that by section 23 of the Workmen's Compensation Law appeals to the Appellate Division and to the Court of Appeals from determinations made by the Commission, save as in said section excepted, are subject to the law and practice applicable to appeals in civil actions. Furthermore, there is nothing in the case showing that Emily K. Waite was the widow. According to the record Harold C. Waite was not married.
The hearing of the appeal must be suspended in this court awaiting such action as the parties may see fit to take.
All concurred.
Decision of appeal suspended in this court to await such action as the parties may see fit to take.