Claim of Stratton v. George J. Kay, Inc.

246 A.D. 659 | N.Y. App. Div. | 1935

Appellant, an insurance carrier, has appealed from an award of the State Industrial Board in claimant’s favor. On August 19, 1932, claimant sustained accidental injuries which arose out of and in the course of his employment for George J. Kay, a plumbing and heating contractor. Claimant’s injuries were sustained because of the negligence of one George Gai. Both Kay and Gai were subeontractors for the general contractor, John Danielson. It is conceded that Gai was an independent contractor. Claimant filed a claim for compensation and did not elect to sue. On September 13, 1932, the appellant filed a notice that payments of compensation had begun. Compensation payments were made by appellant up to May 25, 1933. At a hearing held before the State Industrial Board on September 6, 1933, it appeared that appellant had paid claimant $800. Appellant then contended that claimant was not entitled to any further compensation because he had made a settlement with Danielson without the consent of appellant. Appellant had started an action against Danielson. In that suit Danielson alleged as a special defense that claimant had given him a general release. The evidence shows that on September 19, 1932, claimant, in consideration of the sum of five dollars, executed a general release in favor of Danielson. Claimant testified that he signed this release upon the understanding that it would not affect his compensation rights. The first award of compensation was made on November 7, 1932. If Gai was an independent contractor, then the release which claimant gave to Danielson did not prejudice appellant’s rights. If the release which claimant executed and delivered to Danielson was procured through fraud or mutual mistake, obviously appellant is not prejudiced because it may litigate that issue in its action against Danielson. Award unanimously affirmed, with costs to the State Industrial Board against the appellant. Present — Hill, P. J., McNamee, Crapser, Bliss and Heffernan, JJ.