Opinion
April 14, 1952.
On April 20, 1950, plaintiff was injured in the course of his employment. On July 25, 1950, an award of compensation was made to him and he accepted payments made thereunder. On December 6, 1950, plaintiff commenced this third-party action against the owner of the building upon which the work was being performed, against the lessee, the general contractor, the Raisler Corp., and an employee of the latter corporation. After ascertaining the identity of the employee, named "John Doe" in the original summons and complaint, service was effected upon him on July 13, 1951. The employee (Hooker) thereupon moved to dismiss the complaint on the ground that plaintiff's cause of action against him had been assigned by operation of law to the compensation insurance carrier because it had not been commenced within the time limited by section 29 Work. Comp. of the Workmen's Compensation Law, as it existed prior to September 1, 1951. The motion was denied, and Hooker appeals. Order affirmed, with $10 costs and disbursements. The commencement of the action against the Raisler Corp. on December 6, 1950, within the time limited by section 29 Work. Comp. of the Workmen's Compensation Law is sufficient to defeat appellant's motion to dismiss the complaint, even though he was served after the time limited by that section as it existed before September 1, 1951. Employer and employee are so united in interest within the meaning of section 16 of the Civil Practice Act that the commencement of an action against one is sufficient to toll the statute against the other. ( Hatch v. Cherry-Burrell Corp., 274 App. Div. 234.) Nolan, P.J., Carswell, Johnston, Wenzel and MacCrate, JJ., concur. [ 201 Misc. 277.]