fixing the amount of the award, so far as the same is discretionary (Marshall v. Co., 116 Atl.-), and constitute the standard of prior capacity for use in determining whether there has been a partial loss of capacity, and the extent of such loss. While the meaning of the statute is not entirely free from doubt, it seems much more probable that in the phrases "to earn thereafter as wages in the same employment or otherwise" and "is earning or is able to earn in the same employment or otherwise after the accident" the term "or otherwise" refers only to employment subsequent to the accident, and does not enlarge the meaning of the preceding clauses relating to prior employment. As said in the defendant's brief, little or no assistance on this question can be obtained from decisions in other jurisdictions. The provisions as to computation and the langauge in which they are expressed vary greatly; and although such laws are now in force in nearly every state, most of them were enacted since 1911. Workmen's Compensation Acts (C. J. System) p. 9, note 46. The language of this section (so far as the present question is involved) was evidently copied from the first New York Act, which was passed in 1910 (N. Y. Laws 1910, c. 674, §§ 215-219g), and which was declared unconstitutional upon other grounds while the act here under consideration was pending before the Legislature. Ives v. South Buffalo Railway Co., 201 N. Y. 271, 94 N. E. 431, 34 L. R. A. (N. S.) 162, Ann. Cas. 1912B, 156. There are then two sufficient answers to the plaintiff's claim for compensation under the act. The accident disabled him from earning full wages at the work in which he was employed for only four days. Such injuries are excluded by the proviso in section 3, heretofore considered. While the plaintiff's capacity to earn money in another employment in which he worked part of the time before the accident, was decreased, his capactiy after the accident was such that he could earn the same wages as the defendant paid him before the accident. As before pointed out this damage is not one covered by the compensation features of the act, and could not be recovered here, even if recovery were not defeated upor another ground. In view of these conclusions, the other questions raised, concerning the amount of the award, are not material to the disposition of the case, and have not been considered. In accordance with the terms of the transferred case, the order is bill dismissed. All concurred. BURGI v. JACOB HOFFMAN BREWING CO. et al. (New York Supreme Court, Appellate Division, Third Department. March 8, 1922.) MASTER AND SERVANT COMPENSATION CLAIMANT'S FAILURE TO GIVE NOTICE HELD NOT EXCUSED BY FOREMAN'S KNOWLEDGE OF ACCIDENT. Where an employee, injured while crossing the street to go to a toilet after his work was begun, told his foreman that he fell in the street while coming to work, the statement to the foreman indicated that the accident did not occur in the course of the employment, and hence could not im part knowledge of the accident, excusing the giving of written notice required by the Workmen's Compensation Law to sustain an award. (For other cases, see Master and Servant, Dec. Dig. §398. ) Appeal from State Industrial Board. Proceeding under the Workmen's Compensation Law (Consol. Laws, c 67) by Frank Burgi for compensation, opposed by the Jacob Hoffman Brewing Company, employer, and the Interboro Mutual Indemnity Insurance Company, insurance carrier. From an award by the State Industria! Board in favor of claimant, the employer and the insurance carrier appeal Reversed and remitted. Argued before Cochrane, P. J., and Henry T. Kellogg, Kiley, Van Kirk, and Hinman, JJ. Fitch & Grant, of New York City (Grant C. Fox, of New York City, of counsel), for appellants. S. John Block, of New York City, for respondent. Charles D. Newton, Atty. Gen. (E. C. Aiken, of Albany, of counsel), for Industrial Board. HENRY T. KELLOGG, J. The employer occupied a plant consisting of buildings on opposite sides of the same street. In one of the buildings he maintained a stable, with stalls for 25 horses. In the building opposite there was a toilet, set aside for the use of employees. The claimant was employed to work in the stable. On the day of the accident he came to his work at 4 in the morning, and, after cleaning the 25 stalls, left his work to go across the street to the toilet. In the course of his journey he slipped and fell upon the street, with the result that he injured his arm. He failed to give written notice of the accident causing the injury. The Industrial Board excused this failure on the ground that the foreman of the claimant had knowledge of the accident. The foreman testified that the claimant said to him, early that morning : "When I come to work this morning I fell in the middle of the street, and I can't work." If the foreman told the literal truth, the information which he received advised him of an accident which did not occur in the course of the employment. That would not constitute knowledge of the claim for which the award was granted. The undisputed proof establishes that the claimant received his injury, not while coming to work, but in the course of it. It is highly improbabale, therefore, that the information given by him to the foreman was of an accident otherwise occurring. The claimant seemed to prefer to surrender his claim, rather than to answer questions and give testimony which would save it. He failed to testify to the probable fact that he told the foreman of an injury received while crossing the street after his work began. We think the case should be returned to the Industrial Board, to give the claimant further opportunity to establish a claim which from every indication would appear to be just and honest. The award is reversed, and the claim remitted to the Industrial Board for further action. Award reversed, and matter remitted to the State Industrial Board for further proof, with costs to appellants to abide event. All concur. FREAR ET AL. v. ELLS ET AL. (New York Supreme Court, Appellate Division, Third Department. March 8, 1922.) 193 New York Supplement, 324. 1. MASTER AND SERVANT - INJURY TO EMPLOYEF FROM FOLLY OF CUSTOMER IGNITING GASOLINE HELD “ARISING OUT OF AND IN THE COURSE OF EMPLOYMENT." Where an employee in a bicycle repair shop in the course of his employment accidently spilled gasoline on his trousers, and a customer struck a match and thrust the flame towards the employee igniting the gasoline, causing injuries of which the employee died held, that the spilling of the gasoline and the folly of the customer were both incidental to employment, and the cause of death was through an accident arising out of employment, within the Workmen's Compensation Law. (For other cases, see Master and Servant, Dec. Dig. § 373.) (For other definitions, see Words and Phrases, First and Second Series, Course of Employment.) 2. MASTER AND SERVANT MOTHER HELD ENTITLED TO COMPENSATION AS DEPENDENT OF DECEASED SON. The total weekly expense of deceased employee's family, which consisted of himself, his parents, and a sister, was $40. The sister received nothing, and paid $5 per week for her board; employee contributed $13 per week to the family expense; and the father $12 per week, in addition to paying $10 per week to reduce a mortgage. The mother was not a wagecarner. Held, that the mother was entitled to compensation as a dependent of deceased, but the father was not. (For other cases, see Master and Servant, Dec. Dig. § 388. ) Appeal from State Industrial Board. Proceeding under the Workmen's Compensation Law (Consol. Laws, c. 67) by Fanny Frear and another to recover for the death of George Frear, opposed by George Ells, employer, and the Travelers' Insurance Company, insurance carrier. From an award from the State Industrial Board in favor of claimants, the employer and insurance carrier appeal. Modified and affirmed. Argued before Cochrane, P. J., and Henry T. Kellogg, Kiley, Van Kirk and Hinman, JJ. Benjamin C. Loder, of New York City (E. C. Sherwood, of New York City, of Counsel.), for appellants. Charles D. Newton, Atty. Gen. (E. C. Aiken, of Albany, of counsel), for Industrial Board. HENRY T. KELLOGG, J. The employer maintained a workshop for the sale and repair of bicycles and motorcycles. The employee, for whose death an award was made, worked in the shop making repairs. On the day of the accident which caused his death he was engaged in cleaning a motorcycle. For this purpose he had placed a pan of gasoline on the step of the vehicle. The pan was accidentally upset, and the gasoline spilled on the employee's trousers. A policeman, who had come to the shop to buy oil for his motorcycle, was standing near by. He made the exclamation to the employee that the gasoline would soak through and blister his skin. Thereupon, stating to the employee that he would dry off or burn off the gasoline, the policeman struck a match and thrust out its flame towards the employee. The gasoline immediately ignited, and the flames which followed caused such burns that the employee died. [1] It was an incident of the employment that gasoline spilled upon the clothes of the deceased employee. It was likewise an incident of the employment that customer of the employer came into the shop to buy oil. If the customer had ignited a match for the purpose of lighting a cigar, with the result that the clothes of the employee were set afire, every one would say that the accident occurred from a risk incidental to the employment. The accident in question was due to the folly of an ignorant customer, who entertained the belief that clothes soaked with gasoline could be dried off by a flame held in close proximity with safety to their wearer. That a customer should be so sublimely ignorant we likewise conceive to be a risk incidental to the employment. We therefore hold that the employe came to his death through an accident arising out of his employment. [2] Awards were made to the father and mother as persons dependent upon the employee for their support. The employee, his two parents, and sister constituted the family. The total expenses of the family for food, clothing, heat, light, and other incidentals were $40 per week. The sister received only her board from the family, for which she paid $5 a week. Ten dollars a week was paid from the fund of $40 to reduce the principal of a mortgage upon the family home. The actual support of the father, mother, and son was therefore $25 per week. The mother was not a wageearner. The maximum contribution of the son was $13 per week. The father earned $5 per day, and, while it is true that, owing to sickness, his employment was not continuous, the mathematics of the case compel the conclusion that he contributed $12 a week to the family support and $10 a week to the reduction of the mortgage. The case works out to establish that the mother was a dependent of her deceased son. It is otherwise with the father. He contributed more than his one-third of the total cost of supporting a family of three. The son contributed more than his onethird. Consequently, neither was directly dependent upon the other, while the mother was dependent upon both. All the excess earnings of the son went to the mother. To call the father a dependent, because the support of the mother by the son pro tanto relieved the father, is merely to count twice the aid furr.ished by the son: The argument involves the following non sequitur : A. Supports B.; in consequence, C. does not support B.; ergo, A. supports C. Moreover, the fact that the father made a weekly payment of $10 in reduction of the mortgage shows that he was not without adequate means to support himself, and was not dependent on his son therefor. The award should be modified, by striking therefrom the provision for death benefits made on behalf of the father. Award modified, by striking therefrom the provision for death benefit made on behalf of the father, and, as modified, unanimously affirmed, without costs. OKMULGEE DEMOCRAT PUB. CO. v. STATE INDUSTRIAL COMMISSION OF OKLAHOMA et al. (No. 12415.) (Supreme Court of Oklahoma. March 14, 1922. Rehearing Denied April 18, 1922.) 206 Pacific Reporter, 249. (Syllabus by the Court.) 1. WORKMEN'S COMPENSATION ACT PROVISIONS RECITED; "HAZARDOUS EMPLOYMENT." Section 2, art. 1, c. 246, of the Workmen's Compensation Act, provides in substance as follows: Compensation provided for in this act shall be payable for injuries sustained by employees engaged in the following hazardous employments, to wit, printing plants where machinery is used, and subdivision 1 of section 3 provides that hazardous employment" shall mean manual or mechanical work or labor connected with or incident to one of the industries, plants, factories, etc., mentioned in section 2. 66 (For other definitions, see Words and Phrases, First and Second Series, Hazardous.) 2. MASTER AND SERVANT COMPENSATION CLAIMANT HELD ENGAGED IN HAZARDOUS EMPLOYMENT. There is evidence in the record reasonably tending to show that the claimant was engaged in hazardous employment within the meaning of the foregoing sections at the time of his injury. (For other cases, see Master and Servant, Dec. Dig. § 361.) 3. MASTER AND SERVANT-COMPENSATION (LAIMANT EXCUSED FROM GIVING NOTICE; MEDICAI. TREATMENT NOT ALLOWABLE AS COMPENSATION WITHOUT REQUEST. Record examined, and held: (1) That the Commission was warranted in excusing the claimant from giving notice in strict compliance with the requirements of section 8, art. 2, c. 246, of the Workmen's Compensation Act. (2) That for failure to comply with the positive provisions of section 4, art. 2, c. 246, the claimant is not entitled to recover for medical, surgical, or other attendance or treatment, (For other cases, see Master and Servant, Dec. Dig. §§ 385[16], 398.) 4. MASTER AND SERVANT AUTHORITY TO "COMMUTE" COMPENSATION PAYMENTS DEFINED That part of section 15, art. 2, of the Workmen's Compensation Act, which provides that the Commission may commute periodical payments to a lump sum, does not require the Commission to make the gross sum allowed lighter or less in amount than the sum of the periodical payments to which the claimant would be entitled. (For other cases, see Master and Servant, Dec. Dig. § 385[20].) (For other definitions, see Words and Phrases, First and Second Series, Commute-Commutation.) 5. MASTER AND SERVANT-COMMUTATION OF COMPENSATION UPHELD. Record examined, and held that the action of the Commission in |