On July 16, 1928, an award was made in excess of $1,516.67, which the State Fund felt was justly due, and no appeal from that part of the award was taken. An appeal was taken from the excess. The Industrial Commissioner did not pay the undisputed sum until August 14, 1928.
On October 24, 1929, an additional award of $970 was made, the Commissioner appealing only from the excess over $570. The undisputed amount, however, was not paid until December 27, 1929.
By chapter 754 of the Laws of 1928, subdivision 6, the Workmen's Compensation Law (Cons. Laws, ch. 67) referring to appeals was amended by the following addition to section 23: "A party against whom an award of compensation shall be made may appeal from a part of such award. In such a case the payment of such part of the award as is not appealed from shall not prejudice any rights of such party on appeal, nor be taken as an admission against him." The Appellate Division has awarded the claimant twenty per cent penalty upon the undisputed amounts, pursuant to section 25 of the Workmen's Compensation Law, for the reason that payments were not made within ten days after the awards were filed and *Page 68 notice given. The facts are undisputed and the dates of notice and payment are not questioned.
For the reasons stated in the companion case, handed down herewith, the order in this case should be affirmed, with costs.
CARDOZO, Ch. J., POUND, LEHMAN, KELLOGG, O'BRIEN and HUBBS, JJ., concur.
Order affirmed.