POINT II.

A workman injured by a third party has the right to elect to take compensation from his employer as the result of injuries occasioned by a third party, or to bring an action against the third party for damages.

Section 29 of the Act provides as follows:

Subrogation to remedies of employee. If a workman entitled to compensation under this chapter be injured or killed by the negligence or wrong of another not in the same employ, such injured workman, or in case of death, his dependents, shall, before any suit or claim under this chapter elect whether to take compensation under this chapter or to pursue his remedy against such other. Such election shall be evidenced in such manner as the commission may by rule or regulation prescribe. If he elect to take compensation under this chapter, the cause of action against such other shall be assigned to the State. for the benefit of the State insurance fund, if compensation be payable therefrom, and otherwise to the person or association or corporation liable for the payment of such compensation, and if he elect to proceed against such other, the State insurance fund, person or association or corporation, as the case may be, shall contribute only the deficiency, if any, between the amount of the recovery against such other person actually collected, and the compensation provided or estimated by this chapter for such case. Such a cause of action assigned to the State may be prosecuted or compro

mised by the commission. A compromise of any such cause of action by the workman or his dependants at an amount less than the compensation provided for by this chapter shall be made only with the written approval of the commission, if the deficiency of compensation would be payable from the State insurance fund, and otherwise with the written approval of the person, association or corporation liable to pay the same.

The right of election under this section rests absolutely with the injured employee. The employer can not refuse to pay compensation upon the ground that the injured employee has a cause of action against a third party for the injuries which he received. If the injured employee says, “I want compensation,” the employer must pay compensation.

The following chart shows the remedy that an injured workman injured through the negligence or wrong of a third party can pursue and the obligation imposed upon him by the law.

POINT III.

Employee injured through the negligence or wrong of a third party cannot by his acts exonerate and release the third party and claim compensation from his employer.

He may

Woodward, the claimant in this case, and these facts are undisputed, gave a release to the Binghamton Railway Company, and after giving this release, elected to take compensation from his employer. The question of whether or no there is liability on the part of the third party causing the injury, is not to be determined by the injured employee, if he elects to take compensation. think that there is no liability on the part of a third party and because of this, elect to take compensation from his employer. This is his right, conferred upon him by the statute, but even though in his mind, there is no liability on the part of the third party, he must do no act that will in anyways prejudice his claim when it is assigned to his employer by his election to take compensation. Having elected to take compensation, the burden of paying this compensation is upon the employer. He can not escape the payment of the compensation. The injured employee must do nothing by any act of his that will jeopardize or in any manner impair the cause of action which he has against the third party. Woodward did in this case jeopardize the cause of action which he had against the third party. He not only released the Railway Company for any injuries which they caused him, but he gave them a statement exonerating them from any liability. Where does this act of Woodward leave the employer, if he should now institute an action against this third party? His right to bring this action has been defeated by the act of the claimant, Woodward. This act of Woodward was in violation of law; this act of Woodward was an election to pursue his remedy against a third party; this act of Woodward was a compromise of his cause of action without the consent of the employer or insurance carrier; this act of Woodward deprives Woodward of his right to compensation under the law.

POINT IV. The act of Woodward in signing the release was an election on his part to pursue his remedy against the third party.

When Woodward filed his claim for compensation because of the injuries received through the wrong or negligence of a third party, the test was, did Woodward, by his act, elect to pursue his remedy against a third party, and if he did, did he compromise his action against the third party for an amount less than the compensation that he would be entitled to receive had he elected to take compensation, without the consent of his employer or insurance carrier? If Woodward did, and this is his claim now, he has defeated his right to claim compensation. There is no question that this is just what-Woodward did. Woodward, by these acts of

his, has now precluded himself 'from his right to claim compensation from his employer.

The whole purpose of the law would be defeated if it was left to an injured workman, under the circumstances such as prevail in this case, to negotiate with the third party. He could obtain payment from the third party and then claim compensation from his employer. The employer's rights would be left to the judgment of the workman. The law has safeguarded the workman's right, and all the workman has to do is to place himself within the provisions of the law. If he will not do this; if he will not avail himself of the safeguards that the law has thrown around him, the industry in which he is engaged and the employer for whom he is working should not be punished. In this case, by the award of compensation, the employer and the industry has been punished. Not for anything that the employer has done, not for anything that the employer has failed to do, but because the injured workman did not avail himself of the provisions of the law.

In the case of Lester against the Otis Elevator Company, 9 Misc. 652, the Court says in part, "That an employee sustaining injuries in the course of his employment through the acts or defaults, of a party other than his employer, and suing such party, is required to make and signify his election in accordance with the statute and the rules and regulations of the Commission' as a condition precedent to the collection through the Commission of any deficiency between the recovery in the action and the compensation provided for by the act.” Again, p. 649,