Gen. Acc. Fire & Life Assur. Corp. v. Zerbe Const. Co.

• Decision Date: 20 November 1935
• Citation: 269 N.Y. 227,199 N.E. 89
• Parties: GENERAL ACC. FIRE & LIFE ASSUR. CORPORATION, LIMITED, OF PERTH, SCOTLAND, et al. v. ZERBE CONST. CO., Inc.
• Court: New York Court of Appeals Court of Appeals

269 N.Y. 227

199 N.E. 89

GENERAL ACC. FIRE & LIFE ASSUR. CORPORATION, LIMITED, OF PERTH, SCOTLAND, et al.

v.ZERBE CONST. CO., Inc.

Court of Appeals of New York.

Nov. 20, 1935.

Action by the General Accident Fire & Life Assurance Corporation, Limited, of Perth, Scotland, and another, against the Zerbe Construction Company, Inc. Judgment for plaintiff was modified by a reduction in the amount of the recovery of the plaintiff Yanish, and affirmed by the Appellate Division (243 App.Div. 764, 278 N.Y.S. 517), and defendant appeals.

Affirmed.

The action, as to the plaintiff Yanish, was brought, as alleged in the complaint, to recover for personal injuries sustained by said plaintiff through the negligence of the defendant, general contractor for the construction of a high school building at Floral Park. As the employee of another engaged in furnishing stone for the construction of such building, plaintiff, while walking, in the course of his employment, upon a staging or scaffold erected by the defendant around the wall of the building, was, as the result of the breaking of a plank used on the scaffold, caused to fall several feet to the ground, thereby sustaining the injuries complained of.

Appeal from Supreme Court, Appellate Division, First Department.

Everett W. Bovard and Leo Potts, both of New York City, for appellant.

Daniel Mungall, James A. Nooney, and Ralph O. L. Fay, all of New York City, for respondent.

LEHMAN, Judge.

The plaintiff Joe Yanish, a resident of the state of Connecticut, hired in Connecticutby an employer resident there, was injured in an accident while temporarily working for his employer in the state of New York. Because the accident arose out of and in the course of his Connecticut employment, the injured workman filed a claim in that state under its Workmen's Compensation Law and received an award there for his injuries. The award was paid by the insurance carrier, General Accident Fire & Life Assurance Corporation, Limited. Then the injured workman and the insurance carrier, claiming that the injuries to Joe Yanish were caused by the negligence of the defendant, who is not the employer of Yanish, joined as plaintiffs in bringing this action against the defendants. In the complaint they set up, first, a cause of action in favor of the insurance carrier for the amount of the award against it, and, second, a cause of action in favor of the injured workman, and they demand separate judgments on each cause of action. A judgment against the defendant in favor of the plaintiff General Accident Fire & Life Assurance Corporation, Limited, in the sum of $843, and in favor of Joe Yanish in the sum of $1,500, was modified by the Appellate Division ‘by reducing the amount of the recovery of the plaintiff Joe Yanish to the sum of $1,172.50.’

Under the Workmen's Compensation Law of the state of Connecticut (Gen. St. 1930, § 5226 et seq., as amended), where an employee sustains injuries, an employer or an insurance carrier may bring an action against a person, other than the employer, who is under a legal liability to pay damages in respect to such injuries. Recovery is limited to the compensation paid by the employer or insurance carrier, or which by an award the employer or carrier is obligated to pay. The employee also has a right of action, but the statute contemplates and makes provision for the joinder of an employee and employer in a single action in which the damages should be apportioned. If the Connecticut statute can be given effect outside of that state and is applicable in an action brought in this state, then the two plaintiffs properly pleaded separate causes of action and joined them in a single complaint.

The accident occurred here. The action has been brought here, and the right of the plaintiffs to maintain this action must be determined under the law of this state. Cf. American Law Institute, Restatement of the Law of Conflict of Laws, §§ 378 and 588; Herzog v. Stern, 264 N.Y. 379, 191 N.E. 23. Under the law of this state, a cause of action to recover damages for a personal injury cannot be transferred (Personal Property Law [Consol. Laws, c. 41], § 41), and cannot be split up. United States Fidelity & Guaranty Co. v. Graham & Norton Co., 254 N.Y. 50, 171 N.E. 903. The common-law right of the injured employee to bring an action for the recovery of all the damages for personal injuries caused by the defendant remains unimpaired by the Connecticut statute, and the insurance carrier has no independent cause of action. For that reason the defendant urges upon this appeal that the judgment in favor of the insurance carrier should be reversed.

In form the complaint is defective, and a judgment in favor of the...