Opinion
February 25, 1952.
Action by the plaintiff wife to recover damages for injuries sustained as a result of the alleged negligence of the appellant in maintaining an obstruction at the entrance to an office, and by her husband for loss of services and for expenses. Judgment for plaintiffs reversed on the law, with costs, and complaint dismissed, with costs. The findings of fact implicit in the verdicts are affirmed. The recitation in the order of the Compensation Board that appellant was a special employer is not binding in the light of the fact that it was made after all compensation had been paid by the general employer as to whom the claimant alone sought redress. No refund nor apportionment of the award is directed to be made. The determination was unnecessary and academic and was not binding. ( Donahue v. New York Life Ins. Co., 259 N.Y. 98, 102.) Irrespective of the conclusive effect of the determination, however, the appellant, on the undisputed proof was the special employer of the plaintiff wife at the time of the accident and was an employer within the contemplation of the Workmen's Compensation Law. ( Matter of De Noyer v. Cavanaugh, 221 N.Y. 273; Matter of Dennison v. Peckham Road Corp., 295 N.Y. 457.) The remedy afforded under the Workmen's Compensation Law was exclusive in that plaintiff wife had exercised her election and had procured an award thereunder. (Workmen's Compensation Law, § 11.) Carswell, Acting P.J., Adel, Wenzel, MacCrate and Schmidt, JJ., concur. [See post, p. 931.]