236 A.D. 203 | N.Y. App. Div. | 1932
This case involves an election to sue a third party by an infant through his father as guardian ad litem. Such third party action was voluntarily discontinued by stipulation without the consent of the carrier and without its knowledge after the claimant had reached twenty-one years of age but before the expiration of one year after his twenty-first birthday, up to which time the former infant could have renewed his action.
The accident happened on October 10, 1927. The infant claimant was born March 13, 1909, and was eighteen years of age at the time of the accident. His time to Sue the third party expired March 13, 1931. On October 26, 1927, the claimant filed a notice of election to sue the third party. His attorneys did not bring the case on for trial because the infant and his father did not furnish disbursement money to go on with the case. On December 22, 1930, the suit was discontinued by stipulation of the parties. Thereafter, on December 26, 1930, a hearing was held on the claim for compensation at which hearing the representative of the employer and insurance carrier was informed of the discontinuance of the action. The theory of the Board is stated in its finding as follows: “ The rights of the employer and carrier herein to subrogation or other remedy have not been prejudiced by any conduct on the part of the claimant, and the latter’s right to compensation has not been barred by any loss of remedy suffered by the employer and carrier.” The theory of the Board is untenable. The confusion arises from the failure to differentiate between an election to take compensation and an election to sue a third party. The claimant
The question is raised whether a discontinuance is in effect a compromise. I think that any act whereby the election to sue is not carried to judgment on the merits in order to fix the deficiency, is preventive of any award for deficiency unless the carrier has consented or has waived its right in some way. In this case the carrier did not consent nor did it estop itself to raise a question of prejudice. It was prejudiced and its counsel raised the question at the earliest opportunity.
The award should be reversed and the claim dismissed, with costs against the State Industrial Board.
Van Kirk, P. J., concurs; Rhodes, J., concurs in result on the ground that the insurance carrier was prejudiced; McNamee, J., not voting; Hill, J., dissents and votes to affirm on the ground that the action, if any had been brought against a third party, had been discontinued, and if no action had been brought the intention to bring one had been abandoned several months prior to the time when the cause of action outlawed against the third party, and claimant notified the employer and carrier of the abandonment and began prosecution of the claim for compensation; the carrier and employer have not been prejudiced.
Award reversed and claim dismissed, with costs against the State Industrial Board.