Eisenberg v. Louis Adler Realty Co., Inc.

Order affirmed, with costs. Question certified answered in the negative. No opinion. Concur: Loughran, Ch. J., Lewis, Desmond, Dye, Fuld and Bromley, JJ. Conway, J., dissents in following memorandum: There is involved here the construction of section 29 of the Workmen’s Compensation Law. Concededly, the amendments of 1937 and thereafter were made to enlarge the benefits accruing to the person injured by the “ third party ” and not for the latter’s benefit. It seems to me that a construction more in consonance with legislative intent historically is to be found in McCue v. Shea Co. (175 Misc. 557, affd. 260 App. Div. 946) and Oldford v. Moran Towing Corp. (186 Misc. 46, affd. 270 App. Div. 822) where the court distinguished cases not related to actions originally commenced within the statutory period provided in section 29 and not concerned with the bringing in of additional “ third parties ” therein. It seems to me that a proper reading of section 29, in the light of its history and purpose, leads to the conclusion that an injured workman who, after electing to take compensation, manifests his desire to pursue his remedy against the third party or parties whose negligence or wrong caused his injuries, and who actually does commence such third party action within the period provided therefor, may bring in additional third party defendants, upon motion, after the expiration of that period so long as the general three-year Statute of Limitations has not run in favor of such additional defendants. The construction now adopted makes a plaintiff, such as the one here, stand on a different footing than any other plaintiff known to the law since he alone may never serve a supplemental summons and an amended complaint in an action properly and timely commenced.