Freedman v. Northwestern Casualty & Surety Co.

Appellate Terms of the Supreme Court of New York

Freedman v. Northwestern Casualty & Surety Co.

133 Misc. 713, 233 N.Y.S. 330, 1929 N.Y. Misc. LEXIS 695

CourtAppellate Terms of the Supreme Court of New York

DecidedMarch 13, 1929

StatusPublished

Cited by2 cases

This text of 133 Misc. 713 (Freedman v. Northwestern Casualty & Surety Co.) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Freedman v. Northwestern Casualty & Surety Co., 133 Misc. 713, 233 N.Y.S. 330, 1929 N.Y. Misc. LEXIS 695 (N.Y. Ct. App. 1929).

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Opinion

Per Curiam.

Plaintiff, respondent (the employer), contends that the decision of the State Industrial Board exonerating the insurance carrier from liability to the employee is not binding upon the employer. He, therefore, urges that he properly recovered from the insurer in the court below the amount he paid to the employee in accordance with the award, together with the attorney’s fees [714]*714incurred before the Board and in this action. Even if it be assumed that respondent’s position in this respect is tenable, the complaint should nevertheless have been dismissed since the evidence indicates that defendant’s policy did not cover the compensation awarded for the payment of which plaintiff, respondent, seeks reimbursement. (Matter of Pettit v. Reges, 242 N. Y. 272; Astrin v. East N. Y. Woodwork Mfg. Co., 210 App. Biv. 720.) In view of the fact that the referee held that the Board could not make an award against the defendant, his statement that the defendant’s policy did cover the compensation awarded is not an “ award or decision ” within the meaning of section 23 of the Workmen’s Compensation Law. It, therefore, does not constitute an adjudication in plaintiff’s favor on that point and does not preclude defendant from establishing the contrary.

Judgment reversed, with thirty dollars costs to appellant, and complaint dismissed on the merits, with costs.

All concur; present, Bijur, Peters and Frankenthaler, JJ.

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Per Curiam.

Plaintiff, respondent (the employer), contends that the decision of the State Industrial Board exonerating the insurance carrier from liability to the employee is not binding upon the employer. He, therefore, urges that he properly recovered from the insurer in the court below the amount he paid to the employee in accordance with the award, together with the attorney’s fees [714]*714incurred before the Board and in this action. Even if it be assumed that respondent’s position in this respect is tenable, the complaint should nevertheless have been dismissed since the evidence indicates that defendant’s policy did not cover the compensation awarded for the payment of which plaintiff, respondent, seeks reimbursement. (Matter of Pettit v. Reges, 242 N. Y. 272; Astrin v. East N. Y. Woodwork Mfg. Co., 210 App. Biv. 720.) In view of the fact that the referee held that the Board could not make an award against the defendant, his statement that the defendant’s policy did cover the compensation awarded is not an “ award or decision ” within the meaning of section 23 of the Workmen’s Compensation Law. It, therefore, does not constitute an adjudication in plaintiff’s favor on that point and does not preclude defendant from establishing the contrary.

Judgment reversed, with thirty dollars costs to appellant, and complaint dismissed on the merits, with costs.

All concur; present, Bijur, Peters and Frankenthaler, JJ.

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Bluebook (online)

133 Misc. 713, 233 N.Y.S. 330, 1929 N.Y. Misc. LEXIS 695, Counsel Stack Legal Research, https://law.counselstack.com/opinion/freedman-v-northwestern-casualty-surety-co-nyappterm-1929.

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