Opinion
December 17, 1951.
Present — Nolan, P.J., Carswell, Adel, Sneed and Wenzel, JJ.
In an action to recover damages for personal injuries, alleged to have been caused by defendant's negligence, judgment in favor of defendant, entered upon the verdict of a jury, unanimously affirmed, with costs. Appellant complains that during the course of the trial, defendant's attorney, on cross-examination of plaintiff and on direct examination of one of defendant's witnesses, improperly brought out the fact that a claim had been made by plaintiff against his employer, under the Workmen's Compensation Law. In our opinion the references to workmen's compensation, complained of, were unnecessary and improper. ( Regan v. Frontier Elevator Mill Co., 211 App. Div. 164; Zimber v. Kress, 225 App. Div. 16, 18.) However, the record discloses that appellant's attorney himself brought out, by a request to charge, and by a statement made on trial, the fact that plaintiff had received such compensation and that the compensation carrier had a lien on any recovery by plaintiff, in the sum of $2,461.15. Plaintiff's attorney also excepted to a charge by the trial court that in reaching a verdict the jury should not consider the amount of the compensation lien. Under the circumstances disclosed, it is our opinion that plaintiff's attorney waived the objection which he had originally made to the mention of compensation insurance, and may not now complain of the result which he claims was effected thereby. Moreover, under all the circumstances disclosed, no substantial right of plaintiff was affected. (Civ. Prac. Act, § 106.)