Claim of Feiertag v. Postal Telegraph Co.

256 A.D. 866, 9 N.Y.S.2d 63, 1939 N.Y. App. Div. LEXIS 5178

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 18, 1939
• Status: Published

Opinion

Claimant has appealed from a decision of the State Industrial Board which rescinded an award for deficiency compensation made by a referee. On October 18, 1929, claimant, then sixteen years of age, sustained accidental injuries arising out of and during the course of his employment. As a result of such injuries an action was instituted against a third party to recover damages, which action was thereafter compromised and settled for the sum of $1,150. The State Industrial Board found that the settlement of the third party action “ was made without the written consent of the employer and self-insurer in accordance with Section 29 of the Workmen’s Compensation Law.” That is the sole ground on which the Board decided the claim. It passed on no other questions which were presented. The evidence would seem to be clear and convincing that the third party action was settled and compromised with the consent of claimant’s employer and that the employer has waived its right to insist that such consent should have been in writing and is estopped to raise that question. The decision of the State Industrial Board is reversed, with costs to the appellant against the employer, and the matter is remitted to the Board to take proof on the various issues in the case including the issue as to whether or not the employer has waived its right to insist that its written consent should have been obtained for the settlement in accordance with the provisions of section 29 of the Workmen’s Compensation Law and as to whether or not it is estopped to raise that question. Hill, P. J., Rhodes, McNamee, Crapser and Heffernan, JJ., concur.