Claim of Thomas v. Cooley Contracting Co. , 21 A.D.2d 929 ( 1964 )

Gibson, P. J.

Although the board seems to have been correct in relieving respondent city from contribution during the periods when reduced earnings exceeded the wage rate at the time of the injury in the city’s employ (Workmen’s Compensation Law, § 15, subd. 6, par. [d]; Matter of Crawley v. Failla, 6 NY 2d 57), that issue is not before us, not having been raised in the application for review by the board (Workmen’s Compensation Law, § 23; Matter of Hedlund v. United Exposition Decorating Co., 15 A D 2d 973, 975, mot. for lv. to app. den, 11 N Y 2d 646). In such application, appellants urged error only in the Referee’s finding of the $80.56 wage rate. That rate, if not, in fact, conceded, is not questioned in appellants’ brief, which advances no reason to impeach it. The additional purported appeal from a Referee’s decision must, of course, be dismissed. Decision affirmed, with one bill of costs to respondents filing briefs. Purported appeal by notice of appeal dated May 2, 1963 dismissed, without costs. Herlihy, Reynolds, Aulisi and Hamm, JJ., concur.