Claim of McKee v. White

218 A.D. 300 | N.Y. App. Div. | 1926

Van Kirk, J.

Claimant was injured on the 18th day of September, 1922. He claimed he received his injury by reason of the negligence of a third party. He filed an election to pursue his remedy against this third party and began the action. The case was regularly on the calendar for trial, but, no one appearing for the plaintiff, on May 14, 1925, the action was dismissed for default. Claimant then pressed his claim before the Industrial Board and the award appealed from was made on February 19, 1926, with findings made on June 25, 1926.

By reason of claimant’s election to sue the third party and failure to prosecute the action he brought, the carrier has been deprived of a substantial right, which but for the election it would have had, namely, its right of subrogation to claimant’s remedy against the third party. (Workmen’s Compensation Law, § 29, as amd. by Laws of 1924, chap. 499.) The carrier could not be subrogated to claimant’s remedy while claimant’s election was in force and bis action was pending; and the Statute of Limitations had run against that action on September 18, 1925, and before the carrier knew that claimant’s action was dismissed. The difference of opinion as to the running of the statute arises from the fact that the claimant was a minor when his cause of action arose. The evidence does not show the date of claimant’s birth, but he testified on April 1, 1926, that he was then twenty-three years of age. He was, therefore, twenty-one years of age on or prior to April 1, 1924. The time limited for bringing actions to recover damages for personal injuries resulting from negligence is three years. (Civ. Prac. Act, § 49.) Since claimant was a minor when his cause of action accrued, the time of his disability is not a part of the time limited for beginning the action, “ except that the time so limited cannot be extended * * * more than one year after the disability ceases.” (Civ. Prac. Act, § 60.) The claimant reached his majority more than one year before the period limited in the statute for beginning his action against the third party. The' infancy then does not extend the three-year period. The claimant, having reached his majority before the three-year limitation had expired, was required to commence his action either before the expiration of that period, or within one year after he attained his majority, whichever would be the longer period. (Preusse v. Childwold Park Hotel Company, 134 App. Div. 383; Matter of Rogers, 153 N. Y. 316, 321.)

We think the appellants’ rights have been sacrificed and that the claimant is estopped from asserting a claim for compensation against them.

The award should be reversed and the claim dismissed, with costs.

All concur.

Award reversed and claim dismissed, with costs against the State Industrial Board.