Claim of Vassilakis v. Fairfax Hotel Co.

Cochrane, J.: James Vassilakis, the deceased employee, left him surviving as is claimed a widow and minor children residing in Ververato in the island of Chios, Greece. The Commission has made an award to the widow and children of “ Joseph ” Vassilakis and has commuted the award to a lump sum of $3,811.92 and directed payment of the same to the widow of “ Joseph ” Vassilakis. The error in the name would be sufficiently serious to require correction but there is another objection which requires a reversal of the award. It has been repeatedly held that an award must be based on legal evidence. Section 68 of the Workmen’s Compensation Law, providing that the Commission shall not be bound by common-law or statutory rules of evidence, does not dispense with the necessity for a residuum of legal evidence. However much the Commission in making their investigation may depart from the established rules of evidence or procedure there must be found some evidence recognized as legal before an award can be made. Hearsay evidence and unauthenticated documentary evidence may be used to satisfy the conscience of the Commission in connection with legal evidence, but it is the latter on which an award must ultimately be sustained. [831] (Matter of Belcher v. Carthage Machine Co., 224 N. Y. 326; Matter of Carroll v. Knickerbocker Ice Co., 218 id. 435; Matter of Eldridge v. Endicott, Johnson & Co., 228 id. 21; Minerly v. Kingsbury Construction Co., 191 App. Div. 618; White v. American Society for Prevention of Cruelty to Animals, Id. 6.) The foregoing principles apply to questions of dependency and relationship. (Bonnano v. Metz Brothers Co., 188 App. Div. 380; Profeta v. Retsof Mining Co., Id. 383; Pifumer v. Rheinstein & Haas, Inc., 187 id. 821.) The cases of Moran v. Rodgers & Hagerty, Inc. (180 App. Div. 821) and Hansen v. Flinn-O’Rourke Co., Inc. (192 id. 878) do not oppose but confirm the foregoing views inasmuch as there was in those cases legal evidence of the facts under consideration and the documentary evidence which was attacked was merely corroborative of such legal evidence. There is presented to us no competent evidence that the individuals in whose favor this award has been made are the widow and children of James Vassilakis. No witness was sworn before the Commission. There was presented to the Commission an unverified certificate purporting to have been signed by the president of the community of Ververato that “ Demetrios Nicholas Vassilakis ” left as his wife and children the individuals for whose benefit an award has been made herein, but the signature of the president of the community is in no way authenticated except by some individual whose authority to do so is unknown. There was also presented a statement of the widow that she is the wife of “ James (Demetrius) Vassilakis ” and giving the names of their children. But this statement is not verified and is not even signed in any manner recognized by the laws of this State. There was also submitted the marriage certificate signed by the priest who performed the marriage ceremony and certificates of baptism of the children signed by the priest and godparents. But none of these latter certificates are verified or purport to be authenticated in any manner whatever. The foregoing documents may constitute evidence in Greece but no one will contend that they possess that dignity in New York. There should be no great difficulty in establishing by competent evidence the simple facts required in this case; in fact less difficulty than must have been experienced in collecting the [832] cumbersome documents submitted herein. Section 72 of the act provides for the talcing of depositions, and two or three questions properly directed to the widow would doubtless procure all the necessary information. No one better than she can tell the Commission that she was the wife of the deceased and the names and ages of their children. The method of procuring such evidence is clearly defined and it is not unreasonable that the facts should be properly established. The award should be reversed and the matter remitted to the Commission. All concur, except John M. Kellogg, P. J., dissenting, with an opinion.