Opinion
June 28, 1949.
Appeal from Workmen's Compensation Board.
In a third party action against two defendants the widow voluntarily discontinued the action against one of them during the trial. The action continued against the party who would have been the active tort-feasor, but the party in whose favor the discontinuance was entered would have been equally liable under a statute. The discontinuance was without consent of the compensation carrier. The jury's verdict was in favor of the remaining defendant. The compensation carrier was not prejudiced, therefore, by the discontinuance, since a verdict in favor of the party who could have been found active tort-feasor would also necessarily have relieved one made additionally liable by statute. A discontinuance is a "compromise" of an action requiring the consent of the carrier under section 29 Work. Comp. of the Workmen's Compensation Law. ( Matter of Breitel v. Hinderstein, 261 N.Y. 556, affg. 236 App. Div. 203.) A compromise without consent of the carrier relieves the carrier and employer of responsibility for the award even though there is no prejudice to the carrier arising from the compromise. ( Matter of Roth v. Harlem Funeral Car Co., 243 App. Div. 459, affd. 268 N.Y. 661.) On the effect of compromise generally, see Matter of O'Brien v. Lodi ( 246 N.Y. 46); Matter of Kirby v. Bloomingdale Bros. ( 256 App. Div. 1016, affd. 281 N.Y. 856), and Matter of Gilman v. Barden ( 249 App. Div. 665). Respondent board contends that the carrier waived whatever protection it had arising from the compromise by the course it followed in the compensation proceedings and that it is estopped. But in the claim of the widow, the carrier carefully protected its right, and clearly stated its objection on the record throughout the proceedings. Its notices of appeal are as inclusive as any reasonably prudent litigant would be expected to prepare directed to a confused record. In the case of the claim for benefits for the infant there are concessions in the record by the carrier tantamount to a consent; at least the objection that the third-party action was compromised without consent was not urged when this aspect of the claim was before the referee. Even if not waived, the discontinuance of the action by the widow, then acting as administratrix, was not personally binding on the infant. The administratrix could bind herself by her stipulation and she could bind the next of kin as to interests that could be adjudicated under the complaint in that action. But she could not bind them personally as to other rights not there the subject of adjudication, such as the personal right which the infant son had to dependency compensation benefits, especially where, as far as this record shows, the infant was not personally in the third-party action, took no part in the discontinuance, and received no benefit therefrom which could operate as an estoppel against him. Rights of the infant under the action and under the claim rest on quite distinct grounds. ( Matter of Zirpola v. Casselman, Inc., 237 N.Y. 367.) Decision and award modified to reverse the award in favor of the widow and dismiss her claim, and to affirm the award in favor of the son, and the proceeding remitted to the Workmen's Compensation Board to determine the lien, if any, of the attorneys for the claimant against the award as modified, without costs. Foster, P.J., Heffernan, Brewster, Deyo and Bergan, JJ., concur.