Opinion
May, 1936.
Present — Hill, P.J., Rhodes, McNamee, Bliss and Heffernan, JJ.
Appeal by employer from an award in claimant's favor. The sole question presented is that of rate; appellant contends that the award should have been made at the rate of eight dollars per week, instead of eighteen dollars and thirty-three cents as fixed by the State Industrial Board. Claimant was a laborer in the department of sanitation of the city of New York. On December 31, 1933, while claimant was engaged in picking ice with a pick his fingers became frost bitten causing the injuries in question. From December 29, 1932, to December 29, 1933, claimant had been employed as a counterman and bartender earning twenty-five dollars per week, later increased to thirty dollars per week. As an employee of appellant he was available for work seven days a week. He was required to shovel snow, break ice with a pick and clear the streets of snow and debris. In view of the fact that claimant had not worked substantially the whole of the year immediately preceding his injury as a laborer his average weekly wage was fixed by the Industrial Board at twenty-seven dollars and fifty cents based on wages of a laborer employed in the department of sanitation of the city who earned twenty-seven dollars and fifty cents per week. Award unanimously affirmed, with costs to the State Industrial Board.