Brassel v. Elec. Welding Co. of America

• Decision Date: 25 November 1924
• Citation: 239 N.Y. 78,145 N.E. 745
• Parties: BRASSEL v. ELECTRIC WELDING CO. OF AMERICA.
• Court: New York Court of Appeals Court of Appeals

239 N.Y. 78

145 N.E. 745

BRASSEL

v.ELECTRIC WELDING CO. OF AMERICA.

Court of Appeals of New York.

Nov. 25, 1924.

Action by Michael Brassel against the Electric Welding Company of America. From a judgment of Appeallate Division (208 App. Div. 744, 202 N. Y. S. 918), affirming by a divided court the Trial Term's judgment for plaintiff, defendant appeals.

Reversed.

Appeal from Supreme Court, Appellate Division, Second department.

Charles L. Woody and Robert H. Woody, both of New York City, for appellant.

Vine H. Smith, of New York City, for respondent.

CARDOZO, J.

Plaintiff, an employee of the defendant, the Electric Welding Company of America, fell down a hatchway while working on a vessel that was then undergoing repairs in dry dock at Brooklyn, N. Y. For the purpose of this appeal we assume that there is evidence of negligence on the part of his employee. He made application to the State Industrial Board for an award of compensation under the Workmen's Compensation Act during the term of disability. The injuries were not permanent, and the term of disability was short. Some time in 1920, the board made the desired award, $15 a week for 16 weeks, $240 in all, which the defendant paid in full. The plaintiff accepted the money and has never tendered a return of it. He now sues for his damages. The trial judge held that the State Industrial Board was without jurisdiction, since the injuries were suffered on navigable waters. Danielsen v. Morse Dry Dock & Repair Co., 235 N. Y. 439, 139 N. E. 567. From this he drew the conclusion, not merely that the award was void, but that its collection and retention did not affect the right of action, except to require the jury to credit the $240 upon the damages sustained. A verdict for $1,600 followed these instructions.

[2] We think the acceptance of the payment has destroyed the right of action. The question is not whether the award has the effect of a binding adjudication. We may assume that it is void, and that, at least while unpaid, it might have been set aside or disregarded. Matter of Doey v. Clarence P. Howland Co., Inc., 224 N. Y. 30, 120 N. E. 53. The question is whether a right of action has survived the collection of the award and the retention of the proceeds. The plaintiff made claim under the statute and must be charged with knowledge of its provisions. The statute provides (Workmen's Compensation Act [Consol. Laws, c. 67] § 11) that the liability of an employer thereunder shall be ‘exclusive and in place of any other liability whatsoever’ on account of the injury sustained by the employee. In the light of this provision, the employer, when it tendered payment of the award, affixed by implication the condition that the tender was made upon the statutory terms. The employee, by accepting payment, signified his assent to the condition, and his willingness to receive the money upon the terms thereby imposed. The transaction thus resulted in an accord and satisfaction. So viewed, its efficacy is independent...