This is an appeal from an order of the Supreme Court which directed an insurance carrier to pay an attorney’s fee from the proceeds of its lien against a verdict rendered in a third-party action brought by an injured employee.
In December, 1955 the plaintiff obtained a verdict in a third-party negligence action against the Ring Construction Corporation. At the time judgment was entered the New York Mutual Company had a lien of $1,399.99 against the proceeds of the judgment for compensation payments made to the plaintiff on behalf of his employer the Port Chester Electrical Company, Inc. The attorney who represented the plaintiff paid over to the latter the spm $6,100.01 less a prorata share for his legal
This is entirely a statutory matter and we find no warrant in the statute to support the order. Subdivision 1 of section 29 of the Workmen’s Compensation Law provides that if an injured employee takes compensation and thereafter brings a third-party action on which there is a recovery, the insurance carrier “ shall have a lien on the proceeds of any recovery * * * settlement or otherwise, after the deduction of the reasonable and necessary expenditures, including attorney’s fees, incurred in effecting such recovery, to the extent of the total amount of compensation awarded under or provided or estimated by this chapter ”.
Respondent’s contention that he is entitled to receive his fee in part from that part of the recovery which accrues to the benefit of the insurance carrier is directly in conflict with the language of the statute just quoted. It is true of course that where there is a deficiency the amount of recovery actually collected is the amount remaining after necessary expenses and a reasonable attorney’s fee is deducted (Workmen’s Compensation Law, § 29, subd. 4; Matter of Curtin v. City of New York,
Order should be reversed and motion denied, without costs.
Coon, Halpern, Zeller and Gibson, JJ., concur.
Order reversed and motion denied, without costs.