Claim of Markise v. Quaker Food Stores, Inc. 257 A.D. 886

This is an appeal from a decision of the State Industrial Board denying an award. On October 8, 1931, the claimant’s decedent was injured in the course of his employment, and as a result thereof he died. A claim was presented by Chana Markise, a resident of Germany, the mother of the decedent, as a dependent. An administrator of the decedent was appointed in this State and he brought an action against a third party on August 16, 1933. The action was reached for trial on May 5, 1935, and was stricken from the calendar for failure of prosecution, and was not restored. The State Industrial Board denied the award and disallowed the mother’s claim on the ground that she was not a dependent, and also upon the ground that the administrator failed to prosecute, and that his attorneys were guilty of bad faith and laches, and that the employer and insurance carrier were prejudiced thereby. There is no evidence in the record that the mother was not dependent upon the decedent; but on the contrary there is ample evidence to support the claim of dependency. The mother never had a cause of action against the third party; that belonged to the administrator. The claimant was not bound by the conduct of the administrator. (Matter of Battalico v. Knickerbocker Fire Proofing Co., 250 App. Div. 258; motion for leave to appeal denied, 274 N. Y. 641.) If the employer and insurance carrier were damaged by the action of the administrator or his attorneys, relief may be sought against them. Decision *887reversed, with costs against the State Industrial Board, and matter remitted to Board for further consideration. All concur, except Hill, P. J., and Bliss, J., who dissent.