the compensation must either rest upon the loss of the separate members, or must fall under the provision as to other injuries which will be compensated for by the difference between the earning power before and after the injury.

BARRINGER V. CLARK, 184 App. Div. 695, Nov. 13, 1918.

WOODWARD, J.: The claimant in this case, a girl of fifteen at the time of the accident on the 26th of August, 1916, had her hand drawn into a hot mangle, in the employer's laundry at Saratoga Springs, with the result that she lost, by amputation, the index, middle and ring fingers of her left hand back of the head of the metacarpal bones at about one-quarter of an inch back, while the little finger was amputated at the second joint. The end of the thumb was injured in its fleshy part, and appears to be somewhat sensitive, owing to the necessary treatment. The claimant was at the time in the course of her high school training, being employed in vacation, and is now studying telegraphy, where she expects to receive from seventy-two to ninety-three dollars per month. There is no evidence that she will not be prepared to do the important work involved in telegraphing, though it does appear, by reason of the injury, that she is not continuing the study of typewriting in connection with her telegraphic work, which will, in a measure, limit her efficiency, no doubt.

The State Industrial Commission has awarded compensation as for the total loss of the use of this hand, and identically the same question which was presented in Matter of Grammici v. Zinn (219 N. Y. 322) is involved in this appeal, so far as we are able to discover. There it was held that the basis of the award was the loss of the fingers, not for the total loss of use of the hand; and we think this rule is in no degree modified by Dutcher v. American Express Company (183 App. Div. 162) where the four fingers were amputated up to and including the greater part of their proximal phalanges, and the injury to the thumb made it impossible to bring the thumb ir connection with the palm of the hand. In that case there was practically a total loss of the use of the hand for practical purposes, while here there is merely an amputation of portions of the fingers for which specific rates are fixed by the statute (Consol. Laws, chap 67 [Laws of 1914, chap 41], § 15, subd. 3, as amd. by Laws of 1916, chap. 622); and it affirmatively appears that the claimant is not incapacitated from doing the work for which she was preparing herself at the time of the injury.

It is urged, likewise, that the State Industrial Commission erred in fixing the probable wages of this minor at twelve dollars per week as the basis of the award. But she was fifteen years of age, was then in the high school, and was preparing to learn telegraphy, and we see no good reason why she might not be expected to earn at least twelve dollars per week within a reasonable length of time if possessed of both hands unimpaired.

We are of the opinion the award for 244 weeks is erroneous; that the matter should be sent back to the State Industrial Commission with directions to base the award upon the statutory allowance for the loss of the fingers, the injury to the thumb being only incidental to the general injury to the hand, and no part of it, recognized by the statute, having been lost.

The award should be reversed, and the case is returned to the State Industrial Commission to dispose of in harmony with this opinion. All

concurred. Award reversed and case remitted to the State Industrial Commission to dispose of in accordance with the opinion herein.

The Boscarino opinion cited in the Adams case has to do with partial loss of vision of an eye and appears below, page 68. Upon authority of the Adams decision, the Commission has refused to make award for loss of a hand in Galas v. Capital Seat and Novelty Co., S. D. R., vol. 16, p. 487, Bul., vol. 3, p. 200, May 10, 1918.

In the above cases, the injuries did not affect the palm or the thumb. Where injury has taken the fingers and has extended also to the palm or the thumb, the courts, as the four following opinions show, have affirmed award for full loss of the hand on account of loss of use.

The knives of a motor-driven jointer in a furniture factory cut. off the fingers and palm of the left hand of its operator, leaving only his thumb. The Commission awarded him two hundred and forty-four weeks compensation for the equivalent of the loss of the hand. Upon appeal, the Appellate Division affirmed the award unanimously and with opinion. It distinguished his injury from the Grammici and Kanzar injuries. An attempt to carry the case to the Court of Appeals failed for want of timely notice: 221 N. Y. Rep. 574, June 12, 1917. The opinion of the Appellate Division is as follows:

COBB V. LIBRARY BUREAU, 176 App. Div. 91, Dec. 28, 1916.

KELLOGG, P. J.: The only question is whether the injured employee is entitled to compensation as for the loss of a hand. The Commission finds he lost "all the fingers of his left hand except the thumb and including the entire metacarpal bones of the middle, ring and little finger, and the major portion of the metacarpal bone of the index finger, thereby removing the entire palm from the hand, by reason of which injuries William H. Cobb has permanently lost the use of the left hand."

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In the employer's report of the accident it states that the left hand was badly lacerated. In answer to the question, "Did injury cause loss of any member or part of member?" it answered, yes;" to the question "if so, describe exactly?" it answers "probably all of his left hand. (See doctor's report.)"

In the employee's report he states the nature and extent of the injury as the loss of four fingers and most of the palm of the left hand. In the attending physician's report he is asked: "Is he able to attend to any part of present or any other occupation?" He answered, "he has lost prac

tically one hand; otherwise is all right for work. Has the injury resulted in a permanent disability? A. Yes. Q. If so, what? A. Loss of hand."

No testimony was introduced before the Commission, but the case rested upon these reports. If in any respect the reports were exaggerated or the facts were not fully and correctly stated, the appellants had an opportunity to show what the facts were. In the absence of any other evidence as to the nature of the injury, it is fair to conclude that the reports put the matter in as favorable a condition as the appellants could expect under the circumstances. The law provides that the permanent loss of the use of the hand is equivalent to the loss of the hand.

We find nothing in Matter of Grammici v. Zinn (219 N. Y. 322) or in Matter of Kanzar v. Acorn Manufacturing Co. (Id. 326), recently decided by the Court of Appeals, contrary to the award.

In the Grammici case the employer and insurance carrier produced evidence tending to prove that neither the hand nor the use of it was lost. The Court of Appeals concluded there was no contradiction to this testimony, and that, therefore, the finding that the claimant had lost the use of his hand was unsupported by evidence and was error of law.

In the Kanzar case no evidence was produced before the Commission; the case rested upon the reports, and the court determined that there was nothing in the reports tending to show that the claimant had lost the use of the hand.

We view these cases as holding only that it is error as matter of law to determine that the loss of two or more fingers is the loss of the use of the entire hand, when there is no evidence to show that the hand is useless. The reports presented a question of fact for the Commission to pass upon, and in the absence of any contradiction the Commission was justified in accepting the statements as true. We cannot review its determination upon a question of fact. The award should be affirmed. Award unanimously affirmed.

A drop hammer crushed the right hand of its operator, necessitating amputation of the thumb and three fingers and leaving only the little finger; the Commission's award for loss of the entire hand was affirmed by the Appellate Division and the Court of Appeals; two justices of the Appellate Division dissented upon authority of the Grammici and Kanzar decisions: Donohue v. McKaig-IIatch, Claim No. 57432, June 27, 1916; 177 App. Div. 938, Mar. 7, 1917; 223 N. Y. Rep. 572, Mar. 19, 1918.

A railroad engine backed into an express truck and injured the hand of a helper; for resulting loss of four fingers and impairment of use of the thumb the Commission awarded him compensation as for loss of his hand: Dutcher v. American Express Co., S. D. R., vol. 15, p. 594. Upon appeal, the Appellate Division affirmed his award unanimously and with opinion.

The Court of Appeals denied leave for further appeal June 14, 1918. The opinion of the Appellate Division is as follows:

DUTCHER V. AMERICAN EXPRESS Co., 183 App. Div. 162, May 8, 1918. LYON, J.: The State Industrial Commission made an award to the claimant for the equivalent of the loss of a hand. The single question presented by this appeal is whether the award should have been made for the loss of four fingers only (116 weeks), or for the permanent loss of the use, that is for the equivalent of the loss of the hand (244 weeks). (See Workmen's Compensation Law [Consol. Laws, chap. 67; Laws of 1914, chap. 41], § 15, subd. 3, as amd. by Laws of 1916, chap. 622.)

On December 8, 1916, while engaged as a transfer man in operating an electric motor truck, as an employee of the American Express Company at the Union Station at Albany, the motor truck came into collision with a yard engine, and the claimant sustained accidental injuries which necessitated the amputation of all four fingers of his right hand up to and including the greater portion of their proximal phalanges, leaving a stump with no ends of the fingers or separations between ends protruding, but with no involvement of the metacarpal bones. The claimant also sustained a laceration and fracture of the terminal phalanx of his right thumb resulting in some thickening due to the growth of callous and in the muscles and tendons becoming somewhat shortened and smaller, impairing the full use of the thumb, and resulting in inability to bring the thumb into conjunction with the palm of the hand.

On April 9, 1917, claimant returned to work, being assigned to clerical duties. On May 7, 1917, he became night watchman at the station, and on September 17, 1917, at his request, he resumed his former position of transfer man. At the time of the final hearing before the Commission, he was being paid by the appellant ten dollars a month more than his wages at the time he was injured.

On February 7, 1917, the Commission made an award of fifty dollars for 5 weeks' compensation, and on March 7, 1917, an award for 116 weeks' compensation for the loss of four fingers. On May 9, 1917, the Commission rescinded the award on March seventh and made an award for 224 weeks' compensation, for the equivalent of the loss of the right hand. Hearings were thereafter had at various times before the Commission, and on January 30, 1918, the Commission affirmed the award for 244 weeks. From such award then entered this appeal has been taken.

It is the contention of the appellant that under the practically undisputed facts the Commission was not justified in awarding compensation for the permanent loss of the use of the hand; and appellant relies for a reversal of the award upon Matter of Grammici v. Zinn (219 N. Y. 322); Matter of Kanzar v. Acorn Mfg. Co. (ld. 326); Carkey v. Island Paper Co. (177 App. Div. 73); Adams v. Boorum & Pease Co. (179 id. 412); Matter of Boscarino v. Carfagno & Dragonette (220 N. Y. 323), and Supple v. Erie R. R. (180 App. Div. 135).

In the Grammici case the loss was of the first, second and third fingers and the first phalange of the fourth finger. In the Kanzar case the loss was of the first and second phalanges of the first, second and third fingers and of

the distal phalange of the fourth finger. In both cases the Court of Appeals held that the equivalent of the loss of a hand was not supported by the evidence, and that the hand or the use of it was not lost, "provided it could fulfill, in a degree fair and worth considering, in any employment for which the claimant was physically and mentally fitted or adaptive, its normal and natural functions." In the Carkey case the loss was of four fingers, but it appeared that the claimant had some use of his hand, that he could pick up a lead pencil, but nothing much smaller; could write his name, and could dress himself except putting on his collar and tie. In the Adams case the claimant's first finger was ankylosed at the first two joints but free where it joined the metacarpal bone, and he could write, cut leaves of paper, fold paper, and do many other things in his employment with that hand. In both the Carkey and Adams cases the court held that the claimant was not entitled to an award equivalent to the loss of the use of a hand. In the Supple case the court followed the Grammici and Kanzar cases and reversed the award for the loss of the use of a finger as unsupported by the evidence. In the Boscarino case the court held that the loss of eighty per cent of the vision of an eye did not entitle the claimant to an award for the loss of an cye.

This court held in Matter of Rockwell v. Lewis (168 App. Div. 674) that the loss of the index, second and third fingers, and an injury to the fourth finger rendering it stiff and practically useless, was equivalent to the loss of a hand. This court also held in Donohue v. McKaig-Hatch, Inc. (177 App. Div. 938) that an award for the equivalent of the loss of a hand was justified where the claimant's thumb was amputated at the second joint, and his first, second and third fingers at the third joint and the fourth finger wholly uninjured. This decision was affirmed by the Court of Appeals (223 N. Y. 572).

From the evidence in the case at bar it appears that the claimant can push a truck, holding it with his left hand and pushing it with the palms of both hands, but that his right hand cannot be used in pulling the truck; that he can lift packages by pressing both palms against opposite sides of the package; that he can carry a package by lifting it with his left hand resting upon or supported by his palm and right forearm, or by inserting the palm of his right hand beneath the string by which the parcels are tied; that he can hold papers down with the palm of his right hand while writing on them with his left hand; that he can lift a small goblet of water to his lips, and that by a clip fastened to his hand he can hold a fork but cannot raise food held by the fork to his mouth; that with a pencil between the thumb and palm of his right hand he can write four or five words, but that his right thumb is weak, having about one-tenth strength, and that upon writing with his right hand his thumb loses its strength after a minute or two and he cannot hold the pencil. Upon the evidence the Commission found that there was a lack of the full use of the thumb, and that the prehensile function of the hand was lost, and that there was a permanent loss of the use of the hand considered as the equivalent of the loss of such hand. While the claimant has some use, for certain limited purposes, of the remaining portion of his hand, I think that under the evidence it cannot tulfill in a degree fair and worth considering its normal and natural functions, and that the award of the Commission was fully justified and should be affirmed. Award unanimously affirmed.