The Industrial Board has awarded to each of the minor brothers and sisters of Louis Babb, deceased, fifteen per cent of the average weekly wage of decedent. Besides the minor brothers and sisters, he was survived by a dependent mother. They all reside in the Province of New Brunswick, Canada. '
The award is assailed upon two grounds: (1) That section 17 of the. Workmen’s Compensation Law- governs, and that thereunder awards may not be made to dependent brothers and sisters residing in any foreign country including Canada, and as the mother has *12received a settlement in a third party action which precludes her from an award, none may be made. I am unable to agree with that construction. The section places aliens residing in the United States and Canada on the same footing, but provides a different rule as to aliens residing in other foreign countries. (Mallory v. American Bridge Co., 261 N. Y. 701; Schaubel v. Simons, Stewart & Foy, Inc., Id. 544.) (2) If it be determined that awards may be made under subdivision 4 of section 16 of the Workmen’s Compensation Law to the minor brothers and sisters, the amount fixed is excessive. Since the mother would be entitled to twenty-five per cent and the aggregate limited to sixty-six and two-thirds per cent, there would remain only forty-one and two-thirds per cent to be divided among the brothers and sisters. I agree that any award to the mother is cut off by her settlement of the third party action without written approval (Workmen’s Comp. Law, § 29), otherwise, she would have been entitled to any deficiency that remained after applying the proceeds of the settlement. (Zirpola v. Casselman, Inc., 237 N. Y. 367.) However, the plain context of the statute entitles “ brothers and sisters under the age of eighteen years ” to share in death benefits second only to the surviving spouse and children of the deceased, and ahead of a dependent parent. The award herein to the -brothers and sisters is proper. The dependent mother, had there been no settlement, would have received six and two-thirds per cent of the average wages. (Ziegler v. Pictorial Review Co., Inc., 216 App. Div. 614.)
The award should be affirmed.
Rhodes, Bliss and Heffernan, JJ., concur; McNamee, J., dissents with a memorandum.