213 A.D. 464 | N.Y. App. Div. | 1925
An award was made to claimant for fifty per cent loss of use of his left arm. He was a helper on an ice wagon. The wagon on which he was riding was struck in the rear by a motor truck, causing him to be thrown to the street. He filed a notice of election to sue the third party,and to make claim to compensation for any deficiency between the amount recovered in such action and the compensation to which he might be entitled under the Workmen’s Compensation Law. Section 29 of that law provides that if an injured employee elects to proceed against a third party, the State Insurance Fund, person, association, corporation or insurance carrier, as the case may be, “ shall contribute only the deficiency, if any, between the amount of the recovery against such other person actually collected, and the compensation provided or estimated by this chapter for such case.”
The accident happened on the 17th of April, 1920. The third party action was started by claimant but was not prosecuted to judgment. After a delay of four years from the time of the accident, and on April 29 or 30, 1924, the action was compromised and settled by the payment of $300 to claimant. Upon stipulation an order of discontinuance was entered in the action. This was done without notice to or consent of either the State Industrial Board or the employer, which was a self-insurer. The claimant then undertook to recover compensation for the deficiency, the present award being the result. The contention of "the appellant is that the Statute of Limitations has now run against the employer’s action in subrogation under the three-year Statute of Limitations (Civ. Prac. Act, § 49; re-enacting Code Civ. Proc. §§ 380, 383), and that the claimant’s failure to obtain the employer’s consent to the settlement of the third party action should constitute a waiver of his right to claim compensation.
Section 29 of the Workmen’s Compensation Law is entitled “ Subrogation to remedies of employees,” and there is provided
The award should be reversed and the claim remitted to the State Industrial Board, with costs against said Board to abide the event, with instructions that no award can be made unless and until the deficiency recoverable by award has been properly fixed in accordance with the views expressed in this opinion.
All concur.
Award reversed and claim remitted, with costs against the State Industrial Board to abide the event.