(concurring). The Industrial Board found that the employment in this case was not seasonal on the authority of Hogan v. Onondaga County Highway Dept. (221 App. Div. 636). I do not think that case applies; I do think Deverso v. Parsons (221 App. Div. 622) applies. In the instant case there was no day laborer employed during the year working in the road construction business; that is, no employee in the same class. The man who took care of the horses was not working in the same class with this deceased.
The road construction business was a seasonal employment, operated from about the middle of April until the first of December each year. It seems to be undisputed that the working days within the season were 209. During the season, therefore, the deceased’s earning capacity was four times 209, or $836. This would represent his “ annual earning capacity ” under this' subdivision, prior to the amendment of 1928, chapter 754. (McDonald *482v. Burden Iron Co., 206 App. Div. 571; Blatchley v. Dairymen’s League Co-operative Assn., Inc., 225 id. 167.) In the McDonald and Blatchley Cases {supra) we held that, having determined the earning capacity in the seasonal employment, earnings in some other employment could not be added thereto to establish the earning capacity for a year. In the McDonald case the employment was carried on but a part of each year. When not working for the Burden Iron Company the claimant had worked for the city of Cohoes and for the Cohoes Rolling Mill. We held that the earnings in these two employments could not be considered to increase claimant’s annual earning capacity; earnings were confined to the seasonal employment. By the amendment of 1928 the words “ or other employment as defined in this chapter ” were inserted in the sixth fine of subdivision 3 of section 14. This amendment supersedes the holding in the McDonald ease. Now earnings in some “ other employment as defined in this chapter ” during that part of the year not covered by the seasonal employment may be shown to establish the “ annual earning capacity of the injured employee in the employment in which he was working at the time of the accident.” The words last quoted were in the statute before the amendment of 1928 and they are still there. We are still to ascertain an injured employee’s earning capacity in the employment in which he was working when injured. In ascertaining this earning capacity we may not discard his actual earnings in the seasonal employment during the season. But there remains a part of each year during which a seasonal employee might earn something. The amendment permits, in order to show annual earning capacity, proof of the earnings of such an employee during such remaining part of the year. Thus an injured employee’s earnings in the seasonal employment during the season, plus his earnings during the remainder of the year in some other employment, will constitute his annual earning capacity. In default of earnings by the claimant during the remainder of the year in such other employment the earnings of some other employee of the same or most similar class during the remainder of the year may be shown to establish earning capacity for a full year. Such earning capacity so established is the sum which reasonably represents the “ annual earning capacity of the injured employee in the employment in which he was working at the time of the accident.”
There is in this case no question under subdivision 5 of section 14. It is stipulated and is stated in the report of the employer that deceased’s daily wage was four dollars in the seasonal employment and his weekly earnings twenty-four dollars. These are his earnings as found by the Industrial Board. .
I cannot agree that subdivision 3 has been practically taken *483from the statutes by the amendment of 1928. This subdivision still remains in the statute with a purpose. Subdivisions 1 and 2 cover continuous employments. There are still seasonal employments, in which work may not be had substantially the whole of a year. Also the actual earnings in süch seasonal employment are still an essential part of the sum which reasonably represent the earning capacity of the injured employee in the employment in which he was working at the time of the accident. Such actual earnings must be accepted as conclusive and may not be increased by proof that in some other employment larger wages could have been had during the period of the seasonal employment. Modification by the amendment affects earnings during that period of the year only which is not covered by the seasonal employment.
In the instant case the earning capacity of the deceased during the season is established. If evidence is offered to show the earnings of other employees of the same or most similar class working in the same or similar employment, or other employment as defined in this chapter during the remainder of the year, such earnings may be added to the $836 to establish the annual earning capacity of the deceased.
There is no evidence to sustain the award as made. It should be reversed and the matter remitted to the Industrial Board to make an award under subdivision 3 as construed herein.
Award reversed and claim remitted, with costs against the State Industrial Board to abide the event..