Cornelius Yeople died as the result of injuries received, August 16, 1916, and an award has been made to his widow and to Jennie M. Yeople, as an alleged dependent granddaughter. No complaint' is made of the award to the widow, but the sole question is whether the granddaughter was dependent on the deceased..
She was born October 22, 1901, her father being a son of the deceased. When she was four weeks old she was taken to the home of her grandparents where she has since resided; and has received her entire support from them. The cause of this unusual family disruption was an estrangement between her father and mother. An action for separation was instituted by the mother and alimony was paid her by her husband. After about a year and a half of separation, the parents made *440another attempt at domestic felicity and seem to have been measurably successful inasmuch as they have ever since resided together and the family now consists of the father and mother, and two sons aged fourteen and ten, both going to school. The daughter by consent of all parties has remained with her grandparents. The father and grandfather both worked for this same employer at the time of the accident. The earnings of the father were somewhat in excess of those of the grandfather. The latter had an invalid son, an epileptic, entirely unable to earn anything and living with and dependent absolutely on his father. The claimant herself since the accident has been earning four or five dollars a week working in a button factory. It does not appear that the grandfather had any means of support except his limited and meagre earnings.
The statute. (Workmen’s Compensation Law [Consol. Laws, chap. 67; Laws of 1914, chap. 41], § 16, subd. 4, as amd. by Laws of 1916, chap. 622) requires that the question of dependency “ shall be determined as of the time of the accident.” In Birmingham v. Westinghouse Electric & Mfg. Co. (180 App. Div. 48) this court said in discussing a question of dependency: “ What occurred before or after the date of the accident is of no importance; it is what was the condition on that day.” In that case it was held that the findings of the Commission to the effect that a mother living with her husband was dependent on her son were without evidence in their support and an award in favor of the mother was reversed. It seems clear in the present case that the finding of dependency is absolutely unsupported by the evidence. In the case cited it was said: “No evidence is given to show that she [the mother] was dependent upon him [the son]; the most that can be said of the evidence is that it shows that -he contributed rather more than his share of the expenditures of a large family; but it does not show that if these contributions were withdrawn the claimant’s husband was not abundantly able to care for her out of his own earnings at the time of the accident. He was not obliged to support the other members of his household; none of them had a legal claim upon him; his duty was to support his wife, and the undisputed facts show that he was earning enough to do this equally as well as *441it was being done if he merely discharged the duty imposed upon him by law.” So in the present case the legal liability to support the claimant rested not on her grandfather but on her father, and it appears that he was equally as able to discharge such liability as was the grandfather. Undoubtedly liability for support does not in and of itself under this law which we are now applying, determine a claim of dependency. But when in addition to such legal liability it appears that the person so liable was earning more than the deceased and was occupying equally as good a station in life, and that his family was not materially larger than that of the deceased and that he was able to give his daughter the natural advantages of a home with the influences and associations of father, mother and brothers, none of which associations or influences appear to be derogatory to the welfare of the daughter, the claim of dependency based not on the duty but on the generosity of a third person seems to disappear. More especially is this true when the daughter is approaching a time when she has an earning capacity of her own and can, therefore, if necessary contribute materially to her own support, an advantage which did not exist during the years she was living with her grandparents. The mother of the claimant testifies that she and her husband both desire their daughter to live with them. The fact that the grandmother wishes to keep her, and that the granddaughter may prefer to remain with her grandmother, does not establish a claim of dependency. Apparently all there is in this case in support of such a claim is the desire of these two people to live together, a desire stimulated by the prospect of an award which would not have been made if the claimant had been living with her parents. It clearly was not the purpose of the statute to make compensation in deference to a claim which rests on nothing but sentimentality. The dependency of the claimant at the time of the accident under the -undisputed facts was not on her grandfather but on her father.
The award so far as appealed from should be reversed, and the claim dismissed.
-Lyon, J., concurred.
Award affirmed.