“The Workman's Compensation Law does not prevent an injured employee from maintaining a common law action to recover for personal injuries caused by alleged negligence of one other than plaintiff's employer, and while plaintiff's failure to make the election as to compensation prescribed by the statute is no defense to such an action, plaintiff may make no claim for any deficiency between the amount of recovery in said action and the compensation provided for by said statute.”

Lester vs. Otis Elevator Co., 90 Misc. 649. In this case the claimant claims he received no money for the release he gave the Binghamton Railway Company and is therefore asking for the difference between what he received or did not receive from the third party and what his compensation would amount to. The question is not, how much money did Woodward receive from the Binghamton Railway Company.

Company. The question is not, is the Binghamton Railway Company to blame for this accident. The question is, has Woodward, by his act, elected to pursue his remedy against the Binghamton Railway Company; has he compromised this cause of action and has he defeated his claim for compensation? The learned counsel for the Commission says (Folio 45-6), “You will observe from the affidavit submitted on behalf of the claimant that the release was executed without consideration, and that the claimant did not actually receive any sum of money from the Railroad Company. In addition, if the statements made

claimant, to the effect that the Binghamton Railroad Company was in no way responsible for the injuries, is correct, the insurance carrier is in no way prejudiced by the execution of this release.” This is not the test under the law. If it was shown in this case that the injured employee did receive more money from the Binghamton Railway Company for this release than the compensation that he would be entitled to, would this Court uphold the award of the Commission for compensation? Would this fact change the language of section 29 of the act?

The claimant, when he signed this release, elected to pursue his remedy against a third party. The claimant, when he signed this release, compromised his cause of action against the third party without the consent of the person liable for the payment of the compensation. The claimant may have received money from the Binghamton Railway Company, or the claimant may have received no money from the Binghamton Railway Company. The Binghamton Railway Company may be responsible for the injuries which the claimant received, or the Binghamton Railway Company may not be responsible for the injuries which the claimant received. The claimant can not determine that question. The claimant is now precluded from making claim for compensation.

Lester vs. Otis Elevator Company, 90

Misc. 649.;

POINT V.

The awards of the State Industrial Commission made on June 28th, 1915, and August 4th, 1915, respectively, should be set aside.

All of which is respectfully submitted.

WILLIAM H. FOSTER,

Attorney for Appellants.

HAROLD J. HINMAN.

IN THE

SUPREME COURT

OF THE

STATE OF NEW YORK

APPELLATE DIVISION -THIRD DEPARTMENT

In the Matter of the Claim of
JAMES C. WOODWARD, for Com-

, pensation under the Workmen's Compensation Law,

Respondent,

against

E. W. CONKLIN & Son, Inc.,
Employer, and ÆTNA LIFE
INSURANCE COMPANY, Insur-
ance Carrier.

Appellants.

STATEMENT

This is an appeal from an award made by the State Industrial Commission to James C. Woodward at the rate of $7.69 weekly for a period of ten weeks, and the case continued for further hearing. (Fol. 55.) The Commission has found that on February 2, 1915, the claimant was employed as a driver and caretaker of mules by E. W.