66 66 * * * precludes action in another direction. That is apparent from the whole tenor of the section. The claimant may bring his common-law action against a third party, and if he does so he does not thereby discharge the insurer of his employer unless he recovers as much as he might be awarded by the Commission under the act, because the statute says that in such case 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." On the other hand, if the claimant elects to take compensation under the act, his cause of action against the third party must be assigned to the insurance carrier who thereby becomes subrogated to such remedy of the claimant. And for the protection of the insurer the statute expressly provides that a compromise of any such cause of action by the workman or his dependents at an amount less than the compensation provided for by this chapter shall be made only with the written approval of the person, association or corporation liable to pay the same." Clearly, therefore, a compromise or release by an employee of his cause of action against a third party is ineffectual against the insurer without the written approval of the latter. The release in such case constitutes no obstacle in the way of the insurer prosecuting the assigned claim against the third party. One of the primary purposes of the statute is to protect the employee against his own improvidence, weakness, ignorance or shortsightedness in compromising his claim for injuries. And a reciprocal advantage or protection to the insurer is given in the form of a claim against any third party negligently causing the injury which cannot be destroyed by the act of the injured party without the written approval of the insurer. When a third party takes a release or settles a claim he does so with full knowledge of this statutory requirement that the compromise shall have the written approval of the person or corporation liable for compensation under the act, and that without such approval such release or compromise may not be asserted against the person or party whose approval is thus required. And the statute while protecting the workman does so without sacrificing or prejudicing the rights of either the insurer or the third party. The latter cannot be placed in any less favorable position because whatever he pays he cannot be called on to pay again, but if he compromises for less than his actual liability he remains liable to the insurer for such excess up to the amount allowed under the act unless the latter has consented in writing, as the statute provides, for the compromise at the less amount. Furthermore, section 33 of the act provides that "claims for compensation or benefits due under this chapter shall not be assigned, released or commuted except as provided by this chapter." This of course means that claims for compensation under the act against the insurer may not be assigned, released or commuted, but if the employee without the approval of the person liable to pay the compensation under the act may release a third party and make such release effective against the insurer, then he is permitted to indirectly accomplish the defeat of this provision in section 33 and by settling with the third party release and discharge his claim for compensation under the act. This seems to constitute an additional argument why a release is ineffectual as against the insurance carrier unless it has the approval of the latter. In the present case the claimant received nothing for the release in question, but if he had done so according to the views expressed it would make no difference except that the insurer would be liable only for the difference between the amount received and the compensation provided by the act. The award should be affirmed. WOODWARD, J., concurred in separate opinion. WOODWARD, J. (concurring): The award made by the State Industrial Commission was correctly reached and should be affirmed. The fact that the claimant executed a release of the Binghamton Railway Company from liability to him for the injuries which he received while driving a mule across that company's tracks does not destroy or in this instance affect his right to recover the compensation provided by the Workmen's Compensation Law. In this particular case it does not appear that the Binghamton Railway Company was guilty of any negligence which operated as a cause of the claimant's injuries, and it affirmatively appears that the release was executed and delivered without payment to the claimant of any money or other consideration whatsoever. I think, however, that our decision of this appeal may well proceed upon the broader ground which makes no assumption vi the non-liability of the recipient of the release or the absence of consideration for its execution. The purpose in the enactment of the Workmen's Compensation Law was to secure and insure to injured workers and their dependents the continued payment of a stipulated portion of their weekly earnings. This was to be done in order that trade accidents might be made a trade liability. a charge against the cost of the trade product — and not left to fall harshly and exclusively upon the injured worker and his family. To this end it was deemed desirable that the employer, through one of specified methods, should become responsible for seeing to it that payment of compensation was promptly and regularly made in the amount authorized by the statute regardless of whether the injury was in fact caused by some third person and was not due to anything arising in the ordinary course of the employer's business and under his sole control. One of the chief ends in view was to protect the worker from being compelled to resort to protracted and uncertain litigation for the establishment of his right to reimbursement on the one hand and to protect him likewise from his own improvidence, shortsightedness, lack of knowledge and urgency of financial necessities as factors entering into compromise or settlement negotiations concerning claims for injury. As this court has hitherto observed, the Workmen's Compensation Law should be remedially and beneficially construed to effectuate the obvious legislative purpose. The appellant employer and insurance carrier contend here for a construction of the statute which would seriously cripple its efficacy. It is altogether clear, whether or not the claimant was injured through negligence on the part of the railway company, and whether or not the claimant received any consideration from the company for the execution of the release, that the statute does not, and the rules which the Commission has adopted under the explicit authority of section 29 of the act do not, permit the execution of a release by the claimant in favor of a third person to be construed as an election by the injured person to proceed by suit rather than by taking compensation under the act. The claimant here concededly served no notice of election to proceed by suit, and neither the employer nor the insurance carrier consented to or approved the execution of the release to the railway company. Even the bringing of suit and the obtaining of judgment against the third party would not, under the statute, discharge the insurer unless his recovery in the action amounts to as much as the compensation provided for by the statute. In the event he recovers less than the statute provides may be granted as compensation, the insurer is liable only for the making up of the deficiency. Where the injured person seeks compensation under the act his cause of action, if any, against any and all third persons in connection with the injuries is transferred to the insurance carrier, and the latter thereupon is subrogated to all the rights of the claimant by way of suit for damages by reason of the tort. In order that the insurer may be fully protected against the very thing which, perhaps, the injured man tried to do in this case, the statute explicity provides that "a compromise of any such cause of action by the workman or his dependents at an amount less than the compensation provided for by this chapter shall be made only with the written 營 approval of the person, association or corporation liable to pay the same." (Consol. Laws, chap. 67 [Laws of 1914, chap. 41], § 29.) No release executed by the claimant at bar without the consent of the insurer could, therefore, have any effect upon an action by the insurer against the railway company, except that if the railway company paid anything to the claimant — as was not the case here the railway company is liable to the insurer and the insurer to the claimant only for the difference between the amount paid and the total of compensation payable under the statute. Award unanimously affirmed. Woodward v. Conklin & Son., Inc., 171 App. Div. 736, March 8, 1916. In Cunningham v. Buffalo Copper & Brass Rolling Mills, p. 282 above, the Commission is said to have disregarded an instrument signed by the injured employee subsequent to its award to him of two hundred and forty-four weeks' compensation, wherein he agreed to take in lieu a lump sum of one hundred and sixteen weeks: Connor's Employers' Liability, Workmen's Compensation and Liability Insurance, p. 144. In Powley v. Vivian & Co., 169 App. Div. 170, the text of which appears at p. 70, the contract between Powley and the company exempted each party from all acts of fault or omission by the other. The Appellate Division held this agreement ineffective relative to the Workmen's Compensation Law, as contrary both to the express prohibition of section 32 and to public policy. WHICH IS THE EMPLOYER? A number of accidents under the Workmen's Compensation Law have involved a doubt as to which of two employers ought to pay the compensation. At bottom they have been contractor cases. A truckman sent one of his teamsters to haul sand for a company. The company had complete direction of the teamster's work. It was held liable, rather than the truckman, for a fatal accident to the teamster, Gimber v. Kane Co., S. D. R., vol. 2, p. 475, November, 1914. The Appellate Division unanimously affirmed the Commission's ruling without opinion upon the authority of Miller v. North Hudson Contracting Co., 166 App. Div. 348, March 3, 1915, a Labor Law case determinative of the question when the relation of employer and employee exists: Gimber v. Kane Co., 171 App. Div. 958, November, 1915. similar case evoked similar decisions in Nolan v. Cranford Co., S. D. R., vol. 4, p. 337, March 23, 1915; 171 App. Div. 959, November, 1915.* A A lighter was chartered by one company from another. The owning company, rather than the chartering company, was held liable for injuries received by the captain of the lighter while the vessel was loading, Norman v. Empire Lighterage & Wrecking Co., S. D. R., vol. 2, p. 480, January 9, 1915. An employer contracted with a tank and boiler company to erect a plant for it. One of his employees having been injured, he, rather than the tank and boiler company, was held liable, Landrigan v. Cochran, S. D. R., vol. 6, p. 310, October 4, 1915. A company hired a watchman to another company to watch its cargoes. During the night the watchman stumbled and fell, receiving injuries that resulted in death. The company that let his services, rather than the company that owned the cargoes, was held liable, Oberg v. McRoberts & Co., S. D. R., vol. 6, p. 386. December 20, 1915.† The Nolan decision was affirmed by the Court of Appeals without opinion: 219 N. Y. Rep. Oct. 24, 1916. The award in this case was reversed and set aside by the Appellate Division, November 15, 1916, on the ground that the occupation of watchman is not a hazardous employment. One stevedore loaned an employee of the "shenango" type to another. The employee had been working for the latter but a few moments when he was hurt. An award against the first stevedore was reconsidered by the Commission and transferred against the other, Sala v. Martorella & Giannesi, S. D. R., vol. 7, p. 378, January 18, 1916. In the earliest of these cases, Gimber v. Kane Co., the Commission based its decision upon the principle laid down in certain negligence cases and the award was later affirmed by the Appellate Division without opinion. In the case of Landrigan v. Cochran, the attorneys suggested that the Commission make a finding against both of the employers. They argued that, since the contracting employer was pecuniarily irresponsible "only such an award would be of any practical benefit to the injured. employee." This suggestion of a double award was approved by the Appellate Division in the later and leading decision of Dale v. Saunders Bros. The services of Dale as a driver were let by Saunders Bros. to Patrick Walsh together with a wagon and team (S. D. R., vol. 5, p. 372, July 16, 1915). Dale received mortal injuries from the caving of a sand pit owned by Walsh. affirming an award against Saunders Bros. the Appellate Division said: In The fact that the owner of the sand pit might be liable under the law, does not absolve the general employer. Dale was required to drive his team where the Saunders Brothers directed and by requiring him to go into the sand pit and subjecting him to the increased danger there, they cannot relieve themselves from the ordinary duties and liabilities to their teamster. The fact that under the provisions of this law the employment might fall within two or more different groups and thereby two or more different persons might be liable to make the compensation, does not prejudice the injured employee or his family. It furnishes an additional guarantee that payment will be made. The general employer, where the injury occurs within the lines of the general employment, is liable and that liability is not destroyed by the fact that the special employer may also be liable, thus giving the employee a choice of remedies with but one compensation. The Appellate Division was divided in this Dale case. The majority opinion, unlike the opinion in the Gimber case, declared independence of negligence precedents. "The law of negligence," said the court," the rules relating to master and servant, the rule as to the inability to serve two masters, are of but little value |