115 Misc. 21 | N.Y. Sup. Ct. | 1921
This action is brought to recover for personal injuries alleged to have been caused by the negligence of the defendant. The defense, which is demurred to, alleges that plaintiff, at the time of the injury, was employed by the Audley Clarke Company and made a claim, under the Workmen’s Compensation Law, for compensation, and accepted compensation from the Audley Clarke Company, and, therefore, is not the real party in interest, these facts being pleaded in bar of recovery. The direct attack on the defense is that it does not allege that there ever was any award made under the Compensation Law, and it is contended, by the plaintiff, that until there has been an award, he is free to forego compensation under the law and pursue his right to recovery of ordinary damages from the direct tort-feasors. What is involved is the interpretation of section 29 of the law, as amended in 1917. This reads as follows: “If an employee entitled to compensation under this chapter be injured or killed by the negligence or wrong of another not in the same employ, such injured employee, or in case of death, his dependents, shall, before any suit or any award under this chapter,. elect
The words which have been italicized mark the changes in the law, made by the amendment. The prior law contained the word “ claim ” in place of the word “award,” and in place of the words beginning “ the awarding of compensation,” etc., contained the words “the cause of• action against such other shall be assigned.”
It appears from the cases which arose under the law before the amendment that it was the practice of the commission to have the claimant include in his notice of claim a formal printed assignment of the claim against the tort-feasor. This evidenced and effectuated the subrogation of the state insurance fund to the right to recover the damages. The old law contained nothing to indicate that the divesting of title to that right of action was intended to be postponed, until payment of the award, but on the contrary the express import was that it should take effect on the election to take compensation under the law. The forms prescribed by the commission containing a formal assignment, and the language of the assignment itself all evidence the same intent. Sabatino v. Crimmins Construction Co., 102 Misc. Rep. 172. It was also
Motion granted.