| N.Y. App. Div. | Feb 14, 1966
In an action by a seaman to recover damages
for personal injuries against his employer, defendant George J. Waldie Towing Co., pursuant to the Jones Act (U. S. Code, tit. 46, § 688, as amd.), said defendant appeals from so much of an order of the Supreme Court, Kings County, entered July 29, 1965, as denied its motion for summary judgment pursuant to CPLR 3212. Order, insofar as appealed from, reversed, without costs; appellant’s motion for summary judgment granted; and complaint dismissed as against appellant, without costs. The action is accordingly severed as to appellant. Appellant interposed the defense that plaintiff is precluded from recovery in this aetion on the ground that a prior award for his injuries had been made by the New York State Industrial Board under the provisions of the Workmen’s Compensation Law which plaintiff accepted in full payment as an accord and satisfaction. We are of opinion that payment of such an award in full to plaintiff bars the present action under the Jones Act and, therefore, that the learned Special Term should have granted appellant’s motion for summary judgment (Brassel v. Electric Welding Co., 239 N.Y. 78" date_filed="1924-11-25" court="NY" case_name="Brassel v. Electric Welding Co. of America">239 N. Y. 78, cited with approval in Matter of Ahern v. South Buffalo Ry. Co., 303 N.Y. 545" date_filed="1952-03-13" court="NY" case_name="Claim of Ahern v. South Buffalo Railway Co.">303 N. Y. 545, 552, affd. 344 U.S. 367" date_filed="1953-01-19" court="SCOTUS" case_name="South Buffalo Railway Co. v. Ahern">344 U. S. 367, 372).