Mackin v. Press Publishing Co.

Per Curiam: Claimant was injured on August 21, 1921, when he was nineteen years of age. The compensation in this case should be calculated under subdivision 2 of section 14 of the Workmen’s Compensation Law of 1914. The claimant worked one night a week as a junior pressman. He worked in an employment which was continuous and not seasonal. Men in the same employment worked during the entire year six days per week and, while junior pressmen, received four dollars and fifty cents a day. As soon as the claimant could get a card (rank of pressman) he would receive in the same employment five dollars per day; but he could not attain this rank until he had worked therein five weeks. The claimant had not worked in the same employment during substantially the whole of the year immediately preceding his injury; but the average daily wage of an employee in the same class, working substantially the whole of such immediately preceding year, in the same employment and in the same place, was four dollars and fifty cents. Disregarding for the time the fact that this claimant is a minor, the average annual earnings of claimant consist of three hundred times this daily wage, or one thousand three hundred and fifty dollars; his average weekly wage one-fifty-second of that sum, or twenty-five dollars and ninety-six cents; his weekly compensation seventeen dollars and thirty cents. (Workmen’s Compensation Law of 1914, § 14, subds. 2, 4; Gruber v. Kramer Amusement Corp., 207 App. Div. 564.) We are seeking in this case the average weekly wage of the injured employee in the employment (“ trade, business or occupation ” under definition of subdivision 5 of section 3 of said act, as amd, by Laws of 1917, chap. 705) in which he was engaged when injured, without regard to how long he had worked and without regard to whether or not the employer may have extra men working but one day a week in that employment; having in view that his was a continuous employment, in which men of the same class or grade or rank worked “ in the same * * * place ” six days per week. (Getman v. Fonda, J. & G. R. R. Co., 208 App. Div. 755; Cleveland v. Rice, 209 id. 257.) But the claimant is a minor. The Board has found that under normal conditions his wages would be expected to increase. (See Workman’s Compensation Law of 1914, § 14, subd. 5.) A member of the Industrial Board, in a memorandum of decision, says: “ He [claimant] testified he had intended to learn the trade of a pressman.” We do not find testimony in this form in the case, but claimant was asked: “ Did you try to go there as an apprentice?” and he answered: “ I tried to get there steady.” The attorney [254] for the carrier, when asked by Miss Perkins, “ You don’t question the rate of five dollars a day? ” answered, “ No, I don’t think that an excessive rate.” There is sufficient evidence to justify the Board in finding that compensation should be calculated, upon a weekly wage of thirty dollars, or five dollars per day, making the award nineteen dollars and twenty-three cents per week as found by the Board. The award should be affirmed. All concur, except Hesman, J., dissenting, with an opinion.