
    In the Matter of the Claim of Maude J. Sloate et al., Respondents, against Rochester Taxicab Company et al., Appellants.
    (Argued April 19, 1917;
    decided May 8, 1917.)
    
      Matter of Sloate v. Rochester Taxicab Co., 177 App. Div. 57, affirmed.
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered March 16, 1917, which affirmed an award of the state industrial commission under the Workmen’s Compensation Act. The husband and father of claimants was employed as a taxicab driver and was killed in the course of his employment. Besides his regular pay he also averaged in tips eighty-five cents a day, or five dollars and ten cents a week. The tips were paid to him by persons using the taxicab service. The receiving of these tips was known to his employer and was acquiesced in by him. The industrial commission found that from the nature of the case the average weekly wages would be determined fairly and reasonably only by taking the full actual earnings of deceased and all other employees working in the same employment in the same locality during one full year.of work. The contention of the appellants is that the tips received cannot be considered as part of the wages of the deceased.
    
      William Butler for appellants.
    
      Egburt E. Woodbury, Attorney-General (E. C. Aiken of counsel), for respondents.
   Order affirmed, with costs; no opinion.

Concur: Hiscock, Oh. J., Chase, Cardozo, Pound, McLaughlin and Andrews, JJ. Not voting: Hogan, J.  