Exch. Mut. Indem. Ins. Co. v. Cent. Hudson Gas & Elec. Co.
| Decision Date | 25 May 1926 |
| Citation | 243 N.Y. 75,152 N.E. 470 |
| Parties | EXCHANGE MUT. INDEMNITY INS. CO. v. CENTRAL HUDSON GAS & ELECTRIC CO. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Action by the Exchange Mutual Indemnity Insurance Company against the Central Hudson Gas & Electric Company. From an order of the Appellate Division (216 App. Div. 764, 214 N. Y. S. 833), affirming an order denying its motion to dismiss the complaint, defendant appeals by permission; the court certifying a question for answer.
Reversed, and motion granted, and question certified answered as indicated in the opinion.
Appeal from Supreme Court, Appellate Division, Second Department.
N. Otis Rockwood and M. Glenn Folger, both of New York City, for appellant.
Francis R. Holmes, of New York City, for respondent.
The complaint alleges that on the 3d day of July, 1920, one E. Forrest Smith was in the employ of Charles P. Raymond as an electrician and, while acting within the scope of his employment, came into contact with transmission wires maintained by the defendant and sustained injuries which resulted in his death. Smith left him surviving a widow and theree infant children, and the widow and children made claim for compensation under section 16 of the Workmen's Compensation Law (Consol. Laws, c. 67), and after due hearing an award was made in their favor by the New York State Industrial Board on or about March 20, 1923, The plaintiff is the insurance carrier liable for the payment of the compensation and, under the provisions of section 29 of the Workmen's Compensation Law, the awarding of compensation operated as an assignment of the cause of action against the defendant based upon remedy which the dependents of the deceased employee might have pursued against the defendant for negligence in causing the death of the wage-earner if they had not elected to take compensation under the statute.
The present action is based upon such assignment. The complaint alleges that E. Forrest Smith's death was caused solely by defendant's negligence. The action was begun more than five years after that death. The defendant has moved under subdivision 6 of rule 107 of the Rules of Civil Practice for an order dismissing the complaint. The motion was denied and on appeal to the Appellate Division the order denying the motion was affirmed by a divided court which has granted leave to appeal and has certified the question:
‘Did the alleged cause of action upon which the plaintiff seeks to recover in this case exist at the time of the commencement of the suit or had it ceased to exist or been barred by limitation of time?’
The right of the plaintiff to bring this action is governed solely by the provisions of section 29 of the Workmen's Compensation Law. Its cause of action is based upon assignment of the cause of action which the dependents of the deceased might have had against the defendant and upon subrogation to the remedies which they might have pursued against the defendant. Under the provisions of section 130 of the Decedent Estate Law (Consol. Laws, c. 13), as added by Laws 1920, c. 919, an action by an executor or administrator for negligence or wrongful act causing death of the decedent must be commenced within two years of the decedent's death. If the dependents had no remedy against this defendant except through action brought by administrator or executor under section 130 of the Decedent Estate Law, then, even at the time the award was made, the remedy was lost by lapse of time. Question as to whether section 29 of the Workmen's Compensation Law was intended to confer upon the dependents of a deceased employee new remedy or cause of action has been foreclosed by our decision in Matter of Zirpola v. T. & E. Casselman, Inc., 237 N. Y. 367, 143 N. E. 222:
‘We think the cause of action against third parties for the benefit of next of kin is unchanged by the Compensation Act, except to the extent that the act substitutes...
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