Mariano, J.s.c. (temporarily assigned).
This is an appeal from a determination of facts and rule for judgment entered in the New Jersey Department of Labor and Industry, Workmen's Compensation Division. The appeal is directed solely to that part of the judgment which taxes respondent-appellant with its share of attorneys' fees allowed to counsel for the petitioners.
The case involved rival claims for death benefits by two alleged widows of the decedent, Perry Shuler, Sr., in their own behalf, and in behalf of each of their two infant children.
On June 3, 1953 Perry Shuler, Sr., suffered injuries in a compensable accident as a result of which he died on June 29, 1953. During this period temporary compensation at the weekly rate of $30 was paid by the respondent to petitioner, Ethel Mae Shuler. The statutory funeral allowance of $250 and weekly death benefits of $25 were likewise paid to petitioner, Ethel Mae Shuler, the apparent widow of the decedent, in accordance with the statute. After a total of $200 was paid on said weekly death benefit payments the respondent discontinued payment of the same upon receipt of a dependency claim petition for compensation filed by one Willie D. H. Shuler, which petition was filed on November 4, 1953. The said Willie D. H. Shuler asserted she was the legal widow of the decedent and that the latter was the father of her two infant children. On November 6, 1953 Ethel Mae Shuler filed a similar petition alleging that she was the legal widow of the decedent and that the latter was the father of her two infant children.
Respondent filed identical answers to the petitions in which the jurisdictional facts were admitted and sought an order of the Division determining the portion of the compensation to be paid to or on behalf of the decedent's dependents in accordance with N.J.S.A. 34:15-13(h) in view of the conflicting claims of the alleged widows.
On January 22, 1954 pretrial orders were signed and executed by the parties and the deputy director, which orders stated that "dependency" and "rate" were issues to be determined.
The deputy director awarded compensation to Willie D. H. Shuler and the four dependent children of the decedent. He also allowed attorneys' fees to counsel for the petitioners and taxed respondent with a share thereof. Respondent contends this latter assessment constituted error on the ground that its answers, admitting liability and seeking only a judicial determination as to the identity of the legal widow of the decedent, amounted to a tender within the purview of N.J.S.A. 34:15-64.
The right to compensation for legal services in proceedings before the Workmen's Compensation Division is set forth and defined explicitly in the provisions of the Workmen's Compensation Act, itself, N.J.S.A. 34:15 et seq. Stetser v. American Stores Co. , 125 N.J.L. 275 (E. & A. 1940); Haberberger v. Myer , 4 N.J. 116 (1950); Caputo v. Best Foods, Inc. , 30 N.J. Super. 552 (App. Div. 1954), modified and so affirmed by the Supreme Court, January 17, 1955. Sections 26 and 64 of N.J.S.A. 34:15 are pertinent and provide as follows:
N.J.S.A. 34:15-26. Counsel Fees.
"When any proceedings have been taken under the provisions of article two of this chapter, the bureau or the County Court shall, as a part of the determination and order, either for payment or for commutation of payment, settle and determine the amount of compensation to be paid by the injured employee or his dependents, on behalf of whom such proceedings are instituted, to his legal advisers, and it shall be unlawful for any lawyer, or other ...