pelling reason, in order to prevent a miscarriage of justice or a manifest wrong. The power to change an award is not an arbitrary one, but a judicial discretion, to be exercised only in the interest of justice. The award was a property right, which cannot be destroyed unless it definitely appears that, as a matter of justice, it should not stand.

[4, 5] We may profitably consider whether there is any substantial evidence against the award and whether justice requires its annulment. The decision under review is so out of harmony with the uniform decisions of the commission in like cases against other insurance carriers that it evidently rests upon a mistake of law or fact. See Caine v. Greenhut & Co., 13 State Dept. Rep. 515; Id., 181 App. Div. 907, 167 N. Y. Supp. 1091; Abelson v. Steinway & Sons and Travelers' Insurance Co., App. Div. ——, 175 N. Y. Supp. 893, affirmed at this term of court. The liability of the State Fund is in all respects the same as that of any other insurance carrier, and is established by like proof. That rule is so well understood that we conclude that the commission relied too much upon the statements and conclusions found in the expert opinions. It is evident that the physicians were misinformed as to the facts, or did not fully appreciate them. The opinions, if they had been properly received in evidence, would form no substantial basis for annuling the award. Neither physician had examined the claimant. In fact, one physician, called by the Fund at the hearing, had examined him, and gave evidence favorable to him. Another examined the claimant at the request of the Fund, and it was stated at the hearing that he concluded that the loss of the eye resulted from the injury to the hand.

The opinions upon which the decision under review was made are not based upon the facts of the case. Each opinion, in substance, assumes that the claimant was not sick, and that the trouble with the eye developed in the case of a well man. The evidence shows that, immediately after the accident, the hand and arm to the armpit became very much swollen, inflamed, red, and tender, and that while the swelling was at its worst the deposit of infectious matter, concededly from within, lodged at the eye, and that claimant lost thirty pounds in weight in about three months, was unable to work, was not feeling well at all, was complaining of his hand and of rheumatic pains; that he had attempted to do two or three things and could not do them, and, about seven months after the accident, was still disabled from headaches and dizzy spells, together with poor vision. The claimant was not sworn and was without counsel. The commission made such inquiry as to it seemed best, and it did not inquire of him as to the symptoms or the extent or nature of his illness. Apparently the physicians who wrote the opinions desired no further information upon those subjects. One of the opinions rests upon the statement that the claimant had abscesses of teeth, and that the attending physician had sworn that the claimant was entirely well at the time he first treated the eye. The physician swore to the contrary, and there is no statement outside of the opinion of any "abscesses in teeth." The other opinion also was based upon the apparent assumption that the trouble at the eye developed in a well man, and the improbability of such an occurrence. It assumes that there was a diseased tooth. Both opinions practically assume that there was no infectious pus, arising from the injured hand, absorbed into the blood, entirely overlooking the facts that the employer concedes that pus was forming in the hand and arm, that there was no puncture of the skin for its escape, and that the "bad tooth" spoken of by the doctor who examined the claimant had been extracted at an early time, and that the source of infection evidently remained for a long time thereafter, and that none of the physicians who examined the claimant connected the bad tooth with the loss of the eye. The doctors who saw the claimant had no doubt that infectious matter from the bruised hand was absorbed into the blood and caused the loss of the eye. The physicians called by the Fund on the hearing confirmed that theory.

The ex parte opinions referred to doubt the existence of septicemia, because the claimant was not sick enough to indicate its existence, and because the attending physician, who was dead at the time of the inquiry, in filling up the blank form prepared by the commission, did not give the symptoms from which he determined that there was septicemia, but made the general statement that there was septicemia, from which the loss of the eye resulted. Neither opinion attempts to account for or to explain the known symptoms. The opinions are not in harmony with the decisions of the commission and of this court. The assumed facts were not the facts of this case, and therefore the opinions were not a sufficient basis for a determination that the interests of justice required the award to be vacated and the claim dismissed. If, in any event, the award was not to stand, justice required a rehearing.

The decision under review is arbitrary, and is not fairly within the spirit of sections 22 and 74 of the Workmen's Compensation Law. The order should be reversed, and the award reinstated, without prejudice to a regular proceeding for a rehearing, if desired. All concur.

Under Workmen's Compensation Law, § 20, as amended by Laws 1917, c. 705, and section 23, the commission need not formulate findings, except in cases which are appealed.

(For other cases, see Master and Servant, Dec. Dig. § 416.)

2. MASTER AND SERVANT-OPENING PROCEEDINGS AFTER APPEAL-POWER OF INDUSTRIAL COMMISSION.

State Industrial Commission has power after appeal to open proceedings and receive further testimony, and when this is done the commission should make and file another award or decision, and appeal should be taken therefrom.

(For other cases, see Master and Servant, Dec. Dig. § 417 [4].) 3. MASTER AND SERVANT-WORKMEN'S COMPENSATIONAPPEAL-IRREGULARITIES WHO MAY QUESTION.

Though no notice of filing of an award was given, and notice that award had been made contained no copy of award, where appeal was taken from award thus made, the Industrial Commission cannot complain of its own omission.

(For other cases, see Master and Servant, Dec. - Dig. § 417 [334].) 4. MASTER AND SERVANT-WORKMEN'S COMPENSATIONAPPEAL DETERMINATION.

Where testimony taken on reconsideration after appeal from first award of Industrial Commission has no bearing on pivotal point in the *Decision rendered, May 7, 1919. 176 N. Y. Supp. 28.

case, the appeal from the first award will be considered, though there is no appeal from award made on reconsideration.

(For other cases, see Master and Servant, Dec. Dig. § 417[9].)

5. MASTER AND SERVANT-WORKMEN'S COMPENSATIONDEEDS LIMITATIONS.

Compensation for injury resulting in contraction and inability to extend the second and third fingers of hand, with consequent interference with functions of hand and remaining fingers, is not limited to 55 weeks for loss of second and third fingers, under Workmen's Compensation Laws, § 15, subd. 3, but may be awarded under that part of said subdivision regulating "other cases."

(For other cases, see Master and Servant, Dec Dig. § 385[4].)

6. MASTER AND SERVANT-WORKMEN'S COMPENSATION— AWARD-BASIS.

In awarding compensation under Workmen's Compensation Law, § 15, subd. 3, for injuries resulting in contraction and inability to extend second and third fingers of hand, with consequent interference with functions of hand and remaining fingers, commission should determine wageearning capacity of claimant, and not base award on actual wages received since the accident.

(For other cases, see Master and Servant, Dec. Dig. § 385[2].)

Appeal from State Industrial Commission.

Proceeding for compensation under the Workmen's Compensation Law by George A. Behrens, opposed by the R. F. Stevens Company, employer, and the Standard Accident Insurance Company, insurer. Award in favor of claimant, and employer and insurer appeal. Award reversed, and proceedings remitted to the Commission.

Argued before John M. Kellogg, P. J., and Lyon, Woodward, Cochrane, and Henry T. Kellogg, JJ.

Neile F. Towner, of Albany, for appellants.

Charles D. Newton, Atty. Gen. (E. C. Aiken, Deputy Atty. Gen., of counsel), for respondent.

COCHRANE, J. Confusion has arisen, growing out of the practice on appeals under the Workmen's Compensation Law (Consol. Laws, c. 67). It is claimed by the Attorney General that the appeal in this case has not been properly taken. For the purpose of clarifying the practice and obviating mistakes we are calling attention to the requirements of the statute relative to appeals. Sections 20 and 23.

[1] When the commission makes a decision, it is required to file the same in its office, and immediately after such filing "send to the parties a copy of the decision" (section 20), with "notice of the filing of the award or the decision" (section 23). Within 30 days after such notice. the appeal must be taken. Since the amendment to section 20 of Laws of 1917, chapter 705, the decision need not contain a statement of the conclusions of fact and rulings of law by the commission. But where an appeal is taken "the commission shall within thirty days thereafter serve upon the parties in interest a statement of its conclusions of fact and rulings of law" (section 23). The purpose of the statute plainly is to relieve the commission from the necessity of formulating findings except in cases which are appealed.

[2] Undoubtedly the commission has power after an appeal to open the proceedings and receive further testimony. When it does so, it should make and file another award or decision, and send a copy thereof,

with notice of the filing, to the parties, and an appeal should be taken from such subsequent award or decision, so as to bring up the entire record. In the present case the commission has not followed these plain requirements of the statute, and is primarily responsible for whatever confusion exists. The record shows that it made an award to the claimant September 26, 1918, for a period terminating September 27, 1918. On the following day it sent to the parties a notice stating that an award had been made, but containing no copy thereof. No notice of filing the award was given.

[3, 4] The appellants, however, appealed from the award thus made and the commission cannot complain of its own omissions. Subsequently, and on November 18, 1918, the case was reconsidered, and on November 20, 1918, the commission sent to the parties a communication that "the action of the commission was to affirm the award previously made to September 27, 1918." The decision of November 18, 1918, is not in the record, nor was any copy thereof or notice of filing thereof sent to the appellants, nor have the appellants appealed therefrom. But inasmuch as no testimony was taken on November 18, 1918, bearing on what we regarded as the pivotal point in the case we think we may consider the appeal from the award of September 26, 1918. The statement of the conclusions of fact and rulings of law was properly made after the service of the notice of appeal (section 23).

[5, 6] The claimant was injured October 27, 1916. The injury has resulted in the contraction and inability to extend the second and third fingers of the right hand with consequent interference with the function of the hand and remaining fingers. Seven awards have been made from time to time, all of which have been paid, except the last award, covering the period from August 6, 1918, to September 27, 1918, from which this appeal is taken. The compensation paid covers a period of 91 weeks. We cannot agree with the contention of the appellants that compensation is limited to 55 weeks for the loss of a second and third finger under subdivision 3 of section 15. The injury affects the use of the hand and the remaining fingers, and we agree with the commission that under the statute as it was at the time of this accident compensation may be awarded under that part of subdivision 3 of section 15 regulating "other cases." Matter of Sugg v. Erie Railroad Company, 180 App. Div. 133, 167 N. Y. Supp. 390; Matter of Supple v. Erie Railroad Company, 180 App. Div. 135, 167 N. Y. Supp. 391. But even on this theory the award is wrong. It is 663 per centum of the average weekly wages of the claimant before the accident. The claimant earned nothing during the period covered by the award, but the statute in such a case makes the compensation not 66% per centum of the difference between his former and subsequent wages, but 663 per centum of the difference between his former average weekly wages and "his wage-earning capacity thereafter in the same employment or otherwise." He may have had a "wage-earn ing capacity" during the period covered by this award. That period was nearly 2 years after the accident. Within 2 weeks after the award he was working. Perhaps he was able to do so at the time of the award. No testimony was taken on this point, and the award is unsupported. The commission should determine the wage-earning capacity of the claimant, and not base the award alone on actual wages received since the accident.

The award should be reversed, and the proceeding remitted to the commission All concur.

The use of sarcasm, insinuations, sneers, ridicule, and intimidation by deputy commissioner, while conducting investigation and examining witnesses, manifesting bias and prejudice against employer, requires reversal of award, in view of Workmen's Compensation Law, § 65, as to award of deputy needing only approval of commission, and section 20, as to right to present evidence and be represented by counsel.

(For other cases, see Master and Servant, Dec. Dig. § 417[9].)

Appeal from State Industrial Commission.

Proceedings for compensation under the Workmen's Compensation Law, by Theresa Vissaggio, claimant, against the New York Consolidated Railroad Company, employer and self-insurer. From awards of the State Industrial Commission in favor of claimant, the Railroad Company appeals. Awards reversed, and proceedings remitted to commission for another hearing.

Argued before John M. Kellogg, P. J., and Lyon, Woodward, Cochrane, and Henry T. Kellogg, JJ.

George D. Yeomans, of Brooklyn (Harold L. Warner, of New York City, of counsel), for appellant.

Charles D. Newton, Atty. Gen. (E. C. Aiken, Deputy Atty. Gen., of counsel for respondent.

COCHRANE, J. This award must be reversed because of the misconduct of the deputy commissioner who conducted the investigation The claimant was employed to clean car windows. The alleged accident was the fall of a window on her left little finger, causing subsequent infection. The defense was that the infection was caused by a brass ring worn by her, which scratched or injured a pimple on her finger. The claimant testified she never had a ring on that finger. She further testified that two women were working with her at the time of the accident These women were called as witnesses by Mr. Isaacsen, the attorney of the appellant. One of the women testified that the claimant had a pimple on her little finger; that she had a brass ring on the finger, which started the blood poisoning. She was then subjected to a searching and exhaustive cross-examination by the deputy commissioner, in the course of which the record discloses the following, the questions being asked by him:

"Q. What kind of a ring was it? A. A little brass ring. Q. You have been watching that ring? You have seen the ring a hundred times on her? A. I never watched it. Q. How many times did you see it? A. Once or twice I noticed it. Q. You know the ring. Describe the ring. A. I cannot describe it. She had a ring on her finger. Q. How *Decision rendered, May 7, 1919. 176 N. Y. Supp 109.