283 A.D. 1114 | N.Y. App. Div. | 1954
Plaintiffs, employed by appellant, a masonry subcontractor, were injured in the course of their employment, on January 19,1950, and made claim for and were awarded compensation, pursuant to the Workmen’s Compensation Law. Thereafter, and more than six months after the award of compensation, and more than a year after their injuries were sustained, plaintiffs brought action against defendants, who are respectively the general contractor, the hoisting subcontractor and the architects in charge of the work in which plaintiffs were engaged. Although, pursuant to the provisions of the Workmen’s Compensation Law, then in effect, plaintiffs’ causes of action had been assigned to and were vested in appellant’s compensation insurance carrier, defendants did not plead that defense in their answers to plaintiffs’ complaints. Thereafter, and upwards of three years after the accident, appellant was impleaded by the general contractor and the architects as a third-party defendant. Appellant then served a consolidated answer to the third-party complaints and to the plaintiffs’ complaints against the defendants, in which it alleged as a defense that by reason of the failure of plaintiffs to commence action within the time limited by section 29 of the1 Workmen’s Compensation Law, their causes of action had vested in their employer’s compensation insurance carrier, and plaintiffs were not the real parties in interest,