14. Fredenburg had been working for some years as a passenger car motorman at thirty cents per hour. One month and two days, Sundays excepted, before he received his injuries he had become an express car motorman at thirty-five cents an hour. The Commission awarded him compensation upon the thirty-five, rather than the thirty cents basis. Approving this action, the Appellate Division said:

As to the computation of claimant's wages, section 14 of the Workmen's Compensation Law (Consol. Laws, chap. 67 Laws of 1914, chap. 41) provided that, except as otherwise provided in that chapter, the average weekly wages of the injured employee at the time of the injury should be taken as the basis upon which to compute compensation or death benefits, and should be determined as follows: If the injured employee shall have worked in the employment in which he was working at the time of the accident during substantially the whole of the year immediately preceding his injury, his average annual earnings shall consist of three hundred times his average daily wage. If he shall not have so worked, his average annual earnings shall consist of three hundred times the average daily wage which an employee of the same class working substantially the whole of such immediately preceding year in the same or in a similar employment in the same or a neighboring place, shall have earned when so employed. If either of the foregoing methods of arriving at the annual average earnings cannot reasonably and fairly be applied, such annual earnings shall be such sum as, having regard to the previous earnings of the injured employee, and of other employees of the same or most similar class, shall reasonably represent the annual earning capacity of the injured employee in the employment in which he was working at the time of the accident.

The employment of the claimant as motorman on the express car was assured for at least six months from the time he entered upon it, and there was a reasonable possibility of his continuing on that run. Although he had not worked as motorman on the express car for the year immediately preceding the accident, it appears from the affidavit of the secretary of the defendant that it was the custom of the defendant to pay an employee who had been in the service of the company as long as the claimant, thirty-five cents per hour upon a freight run. This tended to fix the average daily wage of a motorman in such employment prior to the time the claimant took that run, as well as to fix the average earnings of other employees in the same position. We think the finding of the Commission as to the average weekly wages of the claimant was fully warranted by the evidence. Fredenburg v. Empire United Railways, 168 App. Div. 621, July 1, 1915.*

A determination of average weekly wages is a question of fact which the courts, under the inhibition of Workmen's Compensa

Part of this case pertains to the entirely separate subject of concurring awards and is given under that head at p. 277.

tion Law, § 20, will not review, if such determination is supported by any evidence: Fairchild v. P. R. R. Co., 170 App. Div. 135; Fredenburg v. Empire U. Railways, 168 App. Div. 618; Rhyner v. Hueber Building Co., 171 App. Div. 56.* The latitude given to the Commission for determining the average weekly wages is indicated by the words of the court in the Rhyner decision: "The appellants contend that the method of computing the deceased's wages was incorrect. We think the conclusion reached by the Commission was correctly worked out. Of course we are unable to say what mental processes the Commission employed in arriving at the figures given in their decision, but it seems to us that, under the evidence, the figures given might, very properly, have been the result of the method of computation pointed out in subdivision 3 of section 14." The Commission, in Fagan v. United Traction Co., Claim No. 36456, February 23, 1916, applied the wage rate of a regular employee in the same work to determine the wage rate of an occasional or extra employee. In Prentiss v. N. Y. State Rys., Claim No. 29483, November 15, 1915, the average annual earnings of an employce working seven days a week were computed with a multiplier of three hundred and thirty-two, instead of three hundred, the multiplier prescribed by Workmen's Compensation Law, § 14, subd. 1. An appeal was taken from the ruling. In Burke v. Industrial Engineering Co., Claim No. 30288, February 8, 1915, award was made on a wage basis of $2 per day. The claimant, Burke, complained that he had been accepting $2 per day for but four weeks as a result of slack times and that he had been earning $4.50 a day for nineteen years with the Industrial Engineering Company, for which he had worked twenty-three years altogether. A brief discharge and a re-employment appear to have figured in the case. The Commission, having reviewed its award, adhered to the basis of $2. In Dearborn v. Peugeot Auto Import Co., given above, p. 233, the Appellate Division remanded the case to the Commission for further facts relative to the employment. Accordingly, the Commission ascertained that Dearborn, who lost his life as a racer on an automobile speed track, had an agreement for one-half of the money that he might For the first of these cases see p. 179; for the second, p. 332; for the third,

p. 375.

win in any race and a drawing account of $25 per week. It renewed the award that it had originally made on the basis of the drawing account: S. D. R., vol. 7, p. 413, February 3, 1916. This renewed award was unanimously affirmed by the Appellate Division, November 15, 1916. In Noonan v. Yellow Taxicab Service, Claim No. 14485, March 3, 1916, the Commission excluded tips in computing the average weekly wages; but in Sloat v. Rochester Taxicab Co., S. D. R., vol. 8, p. 498, May 12, 1916, included them. The Sloat case is awaiting decision upon appeal, January, 1917.

The Commission's attitude and methods in computing wages have been set forth in Chairman Mitchell's address to the Associated Manufacturers and Merchants published in the monthly Bulletin of the Department of Labor, June, 1916, pp. 17-19.

RELEASE FROM LIABILITY

(Workmen's Compensation Law, §§ 29, 33.)

Release by an administrator from liability for negligence cannot affect the rights of persons entitled to compensation. A freight conductor killed in the course of his employment left six children, three adults and three minors. The railroad company, relying upon the fact that it was engaged in interstate commerce, secured a full release from his administrators upon a payment of $800. Commissioner Lyon, in declaring such release invalid as against the minors, drew the following distinctions, which were approved by the Commission:

In my opinion the release executed by the administrators of the deceased's estate can have no affect (sic) as against these claimants. In any event the claim which was settled by the payment of $800 and the taking of a release was entirely different from that which is presented here. It was a claim for damages and not a claim for compensation. The money was paid to and the release was received from different persons entirely from those now making the claim. The ultimate destination of the money received by the administrators might go in an entirely different direction from that in which the compensation if granted, will go. The money paid the administrators if not liable for decedent's debts, may, for aught that appears, be divided equally between the children of William H. Buell of whom there are six, whereas, the compensation is not liable for debts (Compensation Law, § 33) and is to go to the minor children under eighteen years of age only, of whom there are but three. This distinction in the destination of the money and in the proper persons who should bring the proceeding, was noted by the Court of Appeals in the Winfield case already referred to.

The payment of $800 already made cannot be offset against the compensation to be awarded. The money has not been paid in such wise that it will reach in its entirety the claimants under the compensation law, and, it was not paid as compensation in pursuance of section 21-a* of that law. I advise that compensation be awarded. Should it be made to appear that any part of the $800 actually reached the claimants here, it may, on application of the employer, be offset against their award. Buell v. N. Y. Central and H. R.

R. R. Co., S. D. R., vol. 6, pp. 361, 377, December 14, 16, 1915.

According to a decision of the Appellate Division in March, 1916, a release of a third party from liability, executed by the

* There is no § 21-a; the intended reference is probably § 20-a.

injured employee himself, does not debar the employee from compensation. Nor does such release affect the right of the employer's insurer under Section 29 of the Workmen's Compensation Law to bring an action against the third party for negligence. The text of the opinion is as follows:

COCHRANE, J.: The claimant was a driver and caretaker of mules and was injured while driving a mule across the tracks of the Binghamton Railway Company in the course of his employment by the appellant, E. W. Conklin & Son, Inc. He executed a release to the railway company without compensation or any consideration whatever and without the consent of the insurance carrier. Thereafter he elected to take compensation under the act. The sole question on this appeal is the effect of such release on his right to an award which has been made by the Commission against the insurance carrier.

Section 29 of the Workmen's Compensation Law (Consol. Laws, chap. 67; Laws of 1914, chap. 41) is as follows:

"§ 29. Subrogation to remedies of employee. If a workmen entitled to compensation under this chapter be injured or killed by the negligence or wrong of another not in the same employ, such injured workman, or in case of death, his dependents, shall, before any suit or claim under this chapter, elect whether to take compensation under this chapter or to pursue his remedy against such other. Such election shall be evidenced in such manner as the Commission may by rule or regulation prescribe. If he elect to take compensation under this chapter, the cause of action against such other shall be assigned to the State for the benefit of the State Insurance Fund, if compensation be payable therefrom, and otherwise to the person or association or corporation liable for the payment of such compensation, and if he elect to proceed against such other, the State Insurance Fund, person or association or corporation, as the case may be, shall contribute only the deficiency, if any, between the amount of the recovery against such other person actually collected, and the compensation provided or estimated by this chapter for such case. Such a cause of action assigned to the State may be prosecuted or compromised by the Commission. A compromise of any such cause of action by the workman or his dependents at an amount less than the compensation provided for by this chapter shall be made only with the written approval of the Commission, if the deficiency of compensation would be payable from the State Insurance Fund, and otherwise with the written approval of the person, association or corporation liable to pay the same."

The scheme of this statute is simple and comprehensive. Concisely stated, one of the purposes is to make the third party ultimately liable for the consequences of his negligence if such liability exists, and that the insurer under the act, if there be one, shall have the benefit of such liability of a third party to the extent of an award which may be made by the Commission. The term "elect," as used in section 29, does not have the meaning which it frequently has of indicating a choice between two inconsistent remedies against the same party, the exercise of which choice in one direction