274 A.D. 153 | N.Y. App. Div. | 1948
John Skakandy suffered fatal injuries while employed demolishing a building. He left surviving a widow and two minor children who are the claimants-appellants. Following his death the claimants applied for and were awarded compensation which is being regularly paid. Thereafter the widow was appointed guardian of the children and administratrix of the deceased, for the purpose of'bringing an action against certain third parties allegedly responsible for the wrongful death. No such action was commenced within six months after the award of compensation or within one year from the
The question herein raised is not merely a dispute as to the amount of compensation payable, or to whom, the interpretation of a policy, or the liability of an employer under the Workmen’s Compensation Law wherein the jurisdiction of the Workmen’s Compensation Board would be complete and exclusive. The claim asserted is based on the alleged torts of the Commissioners of the State Insurance Fund in compromising the verdict. Such commissioners are officials and agents of the State (Commissioners of State Insurance Fund v. Lapidus, 182 Misc. 368), and as such may be sued only in the Court of Claims for their wrongful acts. (Court of Claims Act, § 9; Sadigur v. State of New York, 173 Misc. 645.) The Court of Claims, therefore, had jurisdiction.
Whether the claim asserted sets forth facts constituting a cause of action, is dependent upon the authority of the State Insurance Fund to compromise the verdict without obtaining the consent of the claimants and the permission of the Surrogate.
These claimants, constituting the widow and infant next of kin, had a statutory cause of action against the third party wrongdoers which could have been prosecuted in the name of the administratrix (Decedent Estate Law, § 130), and which would have remained under the control and jurisdiction of the Surrogate, whose permission would have been necessary for a compromise and who would have been charged with the responsi
Such jurisdiction and control as the Surrogate may have had over the cause of action, if asserted by the administratrix, and his authority to direct and supervise the disposition of the proceeds therefrom, is beside the point, since the action with
The Court of Claims correctly held that the proposed claim did not state a cause of action and hence, its order denying permission to file, should be affirmed, without costs.
Brewster, Foster and Russell, JJ., concur; Hill, P. J., dissents.
Order of the Court of Claims, denying permission to file a claim, affirmed, without costs.