184 A.D. 817 | N.Y. App. Div. | 1918
Lead Opinion
The claimant, having been injured through an accident, brought an action to recover damages against one Marie Gross, alleging that she was his employer, that she had failed to secure compensation for her employees, and that he was injured through her negligence. Marie Gross in her answer alleged that the employer of the claimant was not herself, but one Louis Gross, her husband. The complaint was dismissed. Thereafter the claimant filed a notice of claim in which in answer to the question, “ Name of employer? ” he wrote, “ Louis Gross or Marie Gross, his wife.” The Commission made an award against Louis Gross and Marie Gross, both of whom were found to be the employer of the claimant. A difficulty confronting the Commission was the fact that, if Marie Gross was the employer, the claimant had previously made his election to bring an action against her, and, therefore, could not later have an award upon a claim afterwards filed. (Workmen’s Compensation Law, § 11; Pavia v. Petroleum Iron Works Co., 178 App. Div. 345.) This difficulty was overcome by the very easy method of merely making a finding that
The award should be reversed and the claim dismissed.
All concurred, except John M. Kellogg, P. J., dissenting, with a memorandum in which Woodward, J., concurred.
Dissenting Opinion
“ ‘ The institution by a party of a fruitless action, which he has not the right to maintain, will not preclude him from asserting the rights he really possesses.’ (Kinney v. Kiernan, 49 N. Y. 164.) ” (McNutt v. Hilkins, 80 Hun, 235, 239.)
“ The principles governing election of remedies are necessarily based upon the supposition that two or more remedies exist. If in fact or in law only one remedy exists, there can be no election by the pursuit of another and mistaken remedy. It is a well-established rule that the choice of a -fancied remedy that never existed and the futile pursuit of it, either because the facts turn out to be different from what the plaintiff supposed, * * * though the first action proceeds to judgment, does not preclude the plaintiff from thereafter invoking the proper remedy.” .(9 Ruling Case Law, 962, § 9.)
“ The question depends for its answer upon the law of election of remedies. Where two inconsistent remedies, proceeding upon irreconcilable claims of right, are open to a suitor, the choice of one bars the other. But, to have that
Woodward, J., concurred.
Award reversed and claim dismissed.