145 N.E. 745 | NY | 1924
Plaintiff, an employee of the defendant, the Electric Welding Company of America, fell down a hatchway while working on a vessel that was then undergoing repairs in dry dock at Brooklyn, New York. For the purpose of this appeal we assume that there is evidence of negligence on the part of his employer. He made application to the State Industrial Board for an award of compensation under the Workmen's Compensation Act during the term of disability. The injuries were not permanent, and the term of disability was short. Some time in 1920 the Board made the desired award, $15 a week for sixteen weeks, $240 in all, which the defendant paid in full. The plaintiff accepted the money and has never tendered a return of it. He now sues for his damages. *80
The trial judge held that the State Industrial Board was without jurisdiction, since the injuries were suffered on navigable waters (Danielsen v. Morse Dry Dock Repair Co.,
We think the acceptance of the payment has destroyed the right of action. The question is not whether the award has the effect of a binding adjudication. We may assume that it is void, and that, at least while unpaid, it might have been set aside or disregarded (Matter of Doey v. Howland Co., Inc.,
We are not required to decide whether the employee might have relief upon a showing of mistake. If that might ever be, at least the duty would be his before the beginning of the action to tender back what he had received (McNamara v. Eastman KodakCo.,
The judgment of the Appellate Division and that of the Trial Term should be reversed and the complaint dismissed, with costs in all courts.
HISCOCK, Ch. J., POUND, McLAUGHLIN, CRANE, ANDREWS and LEHMAN, JJ., concur.
Judgments reversed, etc.