Opinion
December, 1917.
Award reversed and matter remitted to Commission on the authority of Dorb v. Stearns Co. ( 180 App. Div. 138). All concurred, except Kellogg, P.J., dissenting in memorandum, in which Lyon, J., concurred.
The accident was March 30, 1916. The disability did not occur until May twenty-first; up to that time the claimant did not consider his injury serious. The accident took place in the presence of the foreman and the facts of the injury were then stated to him. June third the employer wrote the insurance company the particulars of the accident and the company conceded on the hearing that it had notice of the accident June third. There is no evidence that the foreman did not tell the company of the accident at that time; it was clearly his duty to do so, and if the company claims that he did not, it should have made proof of that fact. The Commission finds that written notice was not given within ten days of the accident, but says the company or carrier was not prejudiced because the company knew of the facts. It overlooks the fact that the notice is to be given ten days after the disability, and not after the injury, and we have seen by the admissions of the company that on June third it had full notice, and that was but thirteen days after the disability. Upon this evidence it was a fair question for the Commission to determine as a matter of fact whether the company was prejudiced by failure to give notice, and its determination upon the facts appearing in the record and found by the Commission is conclusive upon us. I favor an affirmance. Lyon, J., concurred.