In the Matter of the Claim of Lorraine Price, Respondent, against Bison Roofing & Sheet Metal Corp. and Lumber Mutual Casualty Insurance Company of New York, Appellants. State Industrial Board, Respondent

In the Matter of the Claim of Lorraine Price, Respondent, against Bison Roofing & Sheet Metal Corp. and Lumber Mutual Casualty Insurance Company of New York, Appellants. State Industrial Board, Respondent. [MAJORITY] Appeal from an award of death benefits, made to a widow and two minor children, and based upon average annual earnings of $1,800, ascertained pursuant to section 14, subdivision 2, of the Workmen’s Compensation Law. The average weekly rate was computed at $34.62. The question of rate is the only issue on appeal. The record indicates that decedent was employed as a roofer. He did not work substantially the whole of the year immediately preceding the injury but he was not engaged in a seasonal employment. A few months prior to his injury he was promoted to the position of foreman. Men employed in that capacity and doing similar work in the vicinity earned $1,800 or more a year, although they received a higher hourly wage than decedent. This variance is not a bar to the award as made. (Matter of Aronstein v. Trojan Hat Co., Inc., 245 App. Div. 151.) Moreover, as a foreman decedent’s average weekly earnings amounted to $32.68. Award unanimously affirmed, with costs to the State Industrial Board. Present — Hill, P. J., Bliss, Heffernan, Schenck and Foster, JJ.