222 A.D. 540 | N.Y. App. Div. | 1928
Plaintiff, an employee of a concern called George J. Hoffman Company, claims to have been injured on August 3, 1925, through the negligence of the defendant in the course of plaintiff’s employment.
The defendant’s answer sets up as a separate and complete defense that plaintiff “ duly elected to take compensation under the provisions of said Workmen’s Compensation Law of the State of New York,” and that an award was made to him by the State Industrial Board for his disability arising out of the injuries complained of, the conclusion then being stated by the pleader that plaintiff is, therefore, “ barred under the law of the State of New York from any remedy against the defendant herein.” Plaintiff thereupon sought to join as a coplaintiff the Travelers Insurance Company, who was the insurance carrier and by whom any award of compensation by the State Industrial Board would have to be paid. To this joinder the Travelers Insurance Company has given its written consent. The Special Term granted plaintiff’s motion, and from the order the defendant appeals.
The theory of the joinder is that no award of compensation by the State Industrial Board, to which proceédings plaintiff was in any wise a voluntary or willing party, was made, and that any action taken by the State Industrial Board with regard to such an award was duly rescinded. The facts are fully set forth in the proposed siipplemental complaint, leave to serve which was granted by the order.
If the so-called award has actually been paid, the plaintiff has no cause of action against the defendant. (Schubert v. Finkelstein,
Section 209 of the Civil Practice Act provides that “All persons may be joined in one action as plaintiffs, in whom any right to relief in respect of or arising out of the same transaction or series of transactions is alleged to exist whether jointly, severally or in the alternative, where if such persons brought separate actions any common question of law or fact would arise.”
As the record now stands, we assume that a question of fact is presented as to whether or not the plaintiff “ elected ” to receive compensation and was awarded and paid the same. It is obvious that if the defendant sustains its defense of election, award and payment, the right of action for damages for plaintiff’s personal injuries is then in the ownership of the insurance carrier perforce the statute. The converse logically follows in the event of such disputed fact being determined in plaintiff’s favor. In either case, the same or “ common question of law or fact ” arises, because the same negligence must be established by the insurance carrier as would be required of plaintiff if he were someone other than an employee whose employer is entitled to the benefits of the Workmen’s Compensation Law. It is the “ cause of action ” that is vested by the statute in the assignee, the insurance carrier. (Travelers Insurance Co. v. Brass Goods Mfg. Co., supra, 278.) Moreover, the right to relief in either the plaintiff or the proposed coplaintiff is such as is clearly founded upon the “ same transaction or series of transactions ” as defined by section 209 (supra). The matters at issue arising from the allegations in the supplemental complaint, and which we may further assume will be met by the defendant’s answer reiterating its above stated separate defense, “ so involve common questions and spring out of identical or related transactions that their common trial may be had with fairness to the different parties.” (Akely v. Kinnicutt, 238 N. Y. 466, 472.) Hence, I am of the opinion that the order made by
Lazansky, P. J., Young, Hagarty and Seeger, JJ., concur.
Order granting plaintiff’s motion to join the Travelers Insurance Company as a party plaintiff affirmed, with ten dollars costs and disbursements.
