If his earnings were inadequate for that threefold burden, there was partial dependency by him and the other two dependents, as the Deputy Commissioner held. While the cases of Klein v. Brooklyn Heights R.R. Co., 188 App. Div. 509, 177 N.Y.S. 67, and Frear v. Ells, 200 App. Div. 239, 193 N.Y.S. 324, lend some support to the appellants' contention, the weight of authority is against this construction of the act. See Conners v. Public Service Electric Co., 89 N.J. Law, 99, 97 A. 792; Walz v. Holbrook, Cabot Rollins Corp., 170 App. Div. 6, 155 N.Y.S. 703; Fennimore et al. v. Pittsburg-Scammon Coal Co., 100 Kan. 372, 164 S.W. 265; Clover Fork Coal Co. v. Ayres, 219 Ky. 326, 292 S.W. 803; Ex parte Sloss-Sheffield Steel Iron Co., 212 Ala. 3, 101 So. 608; In re Peters, 65 Ind. App. 174, 116 N.E. 848; Hamilton v. Texas Co., 151 La. 692, 92 So. 301.
In the last mentioned case the father, who claimed dependence on a deceased son, and whose claim was allowed, was maintaining a crippled brother. Frear v. Ells, 200 App. Div. 509, 193 N.Y. Supp. 324, and Klein v. Brooklyn Heights R. Co., 188 App. Div. 509, 177 N.Y. Supp. 67, strongly relied on by appellants, are cases where those whose expenses were eliminated in considering the dependency of the claimant were themselves claimants, and it would have been counting them twice otherwise. (2) It could not be found from the evidence how much of the common fund was allowable to each of the three.
Where the head of the family has substantial earnings, more than sufficient to support himself, it has been customary for the board to make an award to the other members of the family unit who were in need of assistance from the deceased employee. See, for example, the recent cases of Matter of Metros v. King Furniture Co. ( 3 A.D.2d 779) and Matter of Reed v. Deitz ( 1 A.D.2d 861); see, also, Matter of Germano v. Louis Longhi Son ( 262 App. Div. 897, motion for leave to appeal denied 306 N.Y. 984). These decisions are in accord with the principle laid down by this court in Klein v. Brooklyn Heights R.R. Co. ( 188 App. Div. 509) and Frear v. Ells ( 200 App. Div. 239). There may be circumstances under which the father may properly be held to be a dependent, even though his earnings were sufficient for his own support, where the contribution by the deceased employee provided a very substantial part of the total family funds and the family standard of living would have to be reduced if the father were not given an award ( Matter of Kaiser v. U.S.O. Camp Shows, 269 App. Div. 915, affd. 296 N.Y. 532) but this is not such a case. An award to the mother alone in this case will adequately provide for a continuance of the family's standard of living. It is apparent that, in the event of the mother's dying before the father, he will be able to maintain his standard of living at the present level out of his own earnings and will not be in need of any contribution from others.