Second Department, November, 1920.

[Vol. 194. general law business and in addition a large business in conveyancing and investing money upon bond and mortgage. It had offices at Mineola, in Nassau county, Jamaica, in Queens county, and in the borough of Brooklyn, Kings county. The firm kept three bank accounts one in the name of the firm at Mineola, one in the name of the firm at Jamaica, and the third in the Mechanics Bank, Brooklyn, in the name of William F. Wyckoff. One Fannie Halsey was the owner and holder of a mortgage for $700 which had been assigned to her as a part of her distributive share of the estate of her sister. The firm of Wyckoff, Clarke & Frost had acted as attorneys for the executors of the will of Miss Halsey's sister. On the 22d of November, 1911, a letter was sent to one of the executors inclosing an assignment in blank of the mortgage held by Fannie Halsey, with the request that she execute the assignment and return it with the other papers in the matter. This was done by Miss Halsey and shortly thereafter an attorney representing the mortgagor called at the office of Wyckoff, Clarke & Frost and gave to the cashier of that firm a check for $700, indorsed payable" to the order of Wyckoff, Clarke & Frost." This check was indorsed by the cashier of said firm "Pay to the order of William F. Wyckoff" and signed with the firm name by John L. Vandeveer, then indorsed "Pay to the order of Mechanics Bank" and signed "William F. Wyckoff by John L. Vandeveer." Vandeveer had power of attorney to sign checks upon the account in the Mechanics Bank and apparently power to indorse the name of Wyckoff, Clarke & Frost. This check was deposited in the Mechanics Bank and entered in the cash book of Wyckoff, Clarke & Frost. It was also entered in the investment ledger of said firm under date of January 26, 1912," Fannie Halsey, Michael Heslin, J. W. McGee, $700."

The firm of Wyckoff, Clarke & Frost did a large investment business, and the amount of money passing through the office at about the time of this transaction was about $200,000 per month. The firm collected interest upon investments and transmitted the same to its clients. It made a charge of two per cent for collections. After the payment of this money to said firm for the Heslin-Halsey mortgage, the firm remitted to Miss Halsey six months' interest, less two per cent for

App. Div.]

Second Department, November, 1920.

collection, on the eighteenth of April and again on the twentyfourth of September. The testimony was that this was done according to custom. About the 1st of January, 1913, the firm of Wyckoff, Clarke & Frost was dissolved and the defendant filed a voluntary petition in bankruptcy, the schedules in which were verified on the 13th day of February, 1913. Fannie Halsey appeared in the schedule of creditors whose claims were unsecured as a creditor for $700. No demand was made upon the defendant or his firm, or anything said to the defendant or any of the firm about this matter except that about the 1st day of January, 1913, the executors of the will of Miss Halsey's sister- her nephews called upon the defendant and in the conversation asked Wyckoff if he remembered anything about the Heslin mortgage, to which Wyckoff replied: "People come in in a hurry sometimes and want to pay off a mortgage and then they do not do it." Miss Halsey testifies that the money was never paid over to her.

These facts, it seems to me, are entirely insufficient to convict the defendant of the crime of grand larceny. There is nothing in the evidence except the statement in the bankruptcy schedules that the defendant owes Miss Halsey $700, to in any way connect him with this money any more than any other member of the firm. There is nothing to show that he ever drew this money out or used it in any way prior to the dissolution of the firm. There is no direct testimony to show that he knew anything about the transaction. Neither is there any testimony to show that in retaining the money the firm acted contrary to Miss Halsey's directions. It may well be that at the time of the dissolution of the firm the defendant and his partners divided the debts of the firm and that this particular indebtedness was allocated to the defendant. The evidence is insufficient to warrant a conviction and the judgment of the court below should be reversed and a new trial ordered.

JENKS, P. J., RICH, BLACKMAR and KELLY, JJ., concur.

Judgment of conviction of the County Court of Queens county, and order, reversed, and a new trial ordered.

Third Department, November, 1920.

[Vol. 194.

Before STATE INDUSTRIAL COMMISSION, Respondent. In the Matter of the Claim of ANGELINA SOLOMONE, Respondent, for Compensation under the Workmen's Compensation Law, for the Death of Her Husband, LEONARDO SOLOMONE, v. DEGNON CONTRACTING COMPANY, Employer and SelfInsurer.

Third Department, November 18, 1920.

Workmen's Compensation Law settlement by injured employee without consent of employer with third person liable for injury — effect on right of dependents-dependents chargeable with any money actually coming to their possession from settlement.

The settlement by an injured employee with a third person whose negligence was responsible for the injury without the consent of his employer does not destroy the claim of his dependents after his death for compensation under the Workmen's Compensation Law. Section 29 of the statute bestows upon the dependents of a deceased employee a cause of action independent of any cause of action which existed at common law or by any other statute. Such cause of action is not derived from any right or benefit which existed in favor of the injured employee, but springs into existence as an original right at his death under conditions making the statute applicable and the employer liable.

Accordingly dependents are not chargeable with any money which was paid to the deceased by a third person and which they have not received. The claimant, the widow of deceased, should be charged with the amount actually received by her from the settlement between her husband and the third person and the employer given credit therefor. KILEY, J., dissents in part, with opinion.

APPEAL by the defendant, Degnon Contracting Company, from an award and order of the State Industrial Commission, entered in the New York office of said Commission on the 10th day of December, 1919.

Frederick J. Flynn [R. A. Mansfield Hobbs of counsel], for the appellant.

Charles D. Newton, Attorney-General [E. C. Aiken, Deputy Attorney-General, and Bernard L. Shientag, counsel to State Industrial Commission, of counsel], for the respondents.

App. Div.]

COCHRANE, J.:

Third Department, November, 1920.

The husband of the claimant while in the course of his employment was injured on May 7, 1918, through the negligence of a third party. He recovered a judgment against that party for $30,000 which he settled for $7,500 without the consent of his employer, which consent was required by section 29 of the Workmen's Compensation Law (as amd. by Laws of 1917, chap. 705). Thereafter, and on January 22, 1919, he died, admittedly in consequence of his said injury. His widow makes a claim herein in behalf of herself and her children which claim has been recognized by the Commission and an award made in their behalf against the employer who appeals therefrom.

The settlement of the judgment by the employee did not affect his claim against his employer except as to the amount received on such settlement. (Matter of Woodward v. Conklin & Son, Inc., 171 App. Div. 736.) A settlement by the claimant herself with the third party would not affect her claim against the employer, except as to the amount received by her on such settlement. (Matter of Matta v. Dennings Point Brick Works, 224 N. Y. 596.) It necessarily follows that the settlement by the employee in his lifetime did not destroy the claim of his dependents after his death.

It remains to be considered whether the amount received by the employee on such settlement should be applied against the claim of his dependents. Said section 29 bestows upon them a cause of action independent of any cause of action which existed at common law or by any other statute. Such cause of action is not derived from any right or benefit which existed in favor of the injured employee, but springs into existence as an original right at his death under conditions making the statute applicable and the employer liable. That was substantially held in Travelers Insurance Co. v. Padula Co. (224 N. Y. 397). It follows that the dependents are not chargeable with what they have not received.

It appears, however, that some of the money paid on the settlement of the judgment is now in the possession of the claimant. Such portion as may have been used or expended by her husband is not to any extent chargeable against her but she should be charged to the extent of the money paid

Third Department, November, 1920.

[Vol. 194. on the judgment and which she has actually received. This is on the principle of "subrogation to remedies of employees given by said section 29. The statute makes the employer liable for "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." As applied to the widow and children the question is not how much has been actually collected by the employee but how much has been actually collected by them. This principle was applied by this court in Dietz v. Solomonwitz (179 App. Div. 560) and counsel for the Commission concedes that the amount received by the widow herein should be credited to the employer. That has not been done. There is some uncertainty in the record as to the correct amount which the claimant has received, and the proceeding must, therefore, be remitted to the Commission to determine that amount and to make the proper application thereof in favor of the employer.

The award should, therefore, be reversed and the matter remitted to the Commission.

All concur, KILEY, J., with separate opinion.

KILEY, J. (concurring):

On May 7, 1918, Leonardo Solomone was at work for the Degnon Contracting Company, appellant, as a laborer. Appellant was a contracting company. While the said Solomone was at work and in the regular course of his employment, on said 7th day of May, 1918, he was struck by an automobile owned and driven by a third party. He was severely injured. The report made by the employer as to the kind and extent of the injuries seems to be sustained by the evidence and is, briefly, as follows: "At the time of the accident he suffered and received injuries consisting of fracture of the base of the spine that paralyzed his lower limbs and also caused incontinence of urine." The employer had notice of the injury. While there is some conflict of evidence as to rate of daily wage, there was overtime and Sunday work, so that the actual wage rate was reached and does not seem to be questioned. On September 23, 1918, the injured employee