Christison v. Wallace

Full title: DONALD CHRISTISON, Respondent v. DOLORITA F. WALLACE, Appellant

Court: Appellate Division of the Supreme Court of New York, Second Department

Date published: Dec 7, 1942

265 App. Div. 937 (N.Y. App. Div. 1942)

Opinion

December 7, 1942.

In this action by an employee, entitled to workmen's compensation from his employer, against a third party to recover damages for personal injuries sustained by him in the course of his employment in consequence of the alleged negligence of the third party, the defendant in her answer pleaded that the plaintiff received an award of compensation under the Workmen's Compensation Law (Cons. Laws, ch. 67) more than six months before the institution of the action, and that the accident occurred more than one year before this action was begun. Plaintiff's motion to dismiss the affirmative defenses on the ground that they were insufficient in law, in that a third party could not avail himself of a defense under section 29 Work. Comp. of the Workmen's Compensation Law, was granted, resulting in the order under review. Order reversed on the law, without costs, and the motion denied, without costs. The Workmen's Compensation Law (§ 29) provides, in substance, that unless the injured servant brings action against a third party, claimed to be liable by reason of his negligence, within six months after an award, or within one year after the accident, such failure shall operate as an assignment of the cause of action to the insurance carrier liable for the payment of such compensation. We are of opinion that the cause of action passed out of the plaintiff by operation of law upon his failure to prosecute it within the period prescribed by section 29 Work. Comp. of the Workmen's Compensation Law and, therefore, is not affected by the provisions of the Civil Practice Act (§ 49, subd. 6) prescribing a limitation of three years within which such an action may be brought. ( Calagna v. Sheppard-Pollak, Inc., 264 App. Div. 589. ) McCue v. Shea Co., Inc. ( 175 Misc. 557; affd., without opinion 260 App. Div. 946), in so far as it holds to the contrary, is overruled.

Hagarty, Johnston and Close, JJ., concur; Adel, J., concurs in the result; Taylor, J.:

I dissent and vote to affirm. ( Vide, McCue v. Shea Co., Inc., supra.) I am not in accord with the ruling in Calagna v. Sheppard-Pollak, Inc., ( supra).