Opinion
December 20, 1961
Appeal by the employer and its carrier from a decision of the full membership of the Workmen's Compensation Board, three members including its chairman and vice chairman dissenting, which affirmed, as modified, disability and facial disfigurement awards made by a Referee in favor of claimant. On May 10, 1956 while riding with four coemployees to their job site in Mount Morris, New York in a motor vehicle owned and operated by one of them, claimant, a bricklayer, received injuries which have been found to be compensable. He filed a claim for compensation on May 20, 1956. A notice of controversy which alleged inter alia that the accident did not arise out of and in the course of employment was thereafter filed by the employer. At an early hearing before the Referee claimant's attorney sought and was granted an adjournment of the compensation case in order that a common-law negligence action might be instituted against the personal representative of the driver who had been killed in the accident to recover for the same personal injuries encompassed by claimant's previously filed compensation claim. Such an action was subsequently instituted in the Supreme Court on or about July 26, 1957. Defendant therein interposed an answer which denied the complaint's averments of negligence, injury and damages and alleged as a separate defense that plaintiff's exclusive remedy was workmen's compensation. (Workmen's Compensation Law, § 29, subd. 6.) During its pendency interim adjournments of the compensation claim were granted at the request of claimant's counsel. Before trial the Supreme Court action was settled by the payment to claimant of $3,150 by the employee's insurance carrier and discontinued upon the stipulation of the parties concededly without the written consent provided by subdivision 5 of section 29 Work. Comp. of the Workmen's Compensation Law. Subsequent awards — to the granting of which the unapproved compromise of the cause of action was considered to be no legal impediment for the reason that it had not been effected with a third party within the meaning of subdivision 1 of the same section — were made by the Referee upon the finding that the claimant had sustained an industrial accident. A majority of the full board affirmed the decision of the Referee with the modification that the compensation carrier was entitled to be credited in the interest of justice with the net proceeds received by claimant in compromise of the civil action. In Matter of Martin v. C.A. Prods. Co. ( 8 N.Y.2d 226) the prior successful prosecution and settlement of a common-law action instituted by an employee against his employer — identical in principle to the speculative experimentation attempted here — was held to bar the compensation proceeding. Analogy compels, in our judgment, the same result in the case at bar. (See, also, Matter of Russell v. 231 Lexington Ave. Corp., 266 N.Y. 391; Matter of Ryan v. Sheffield Farms, 256 App. Div. 867.) Decision and awards reversed and claim dismissed, with costs to appellants against the Workmen's Compensation Board. Bergan, P.J., Coon, Herlihy, Reynolds and Taylor, JJ., concur.