Claim of Gallagher v. Carol Construction Co.

McNamee, J. The claimant was injured in his employment, filed a claim for compensation under the Workmen’s Compensation Law, and then elected under the statute to bring an action against a third party to recover on the ground of negligence. The action came to trial before the Supreme Court and a jury, and a verdict [33] in the sum of $5,000 was rendered in favor of the plaintiff, the claimant here. Upon the defendant’s motion to set aside the verdict and for a new trial, the trial judge made an order granting the motion, on the ground that the verdict was excessive, unless the plaintiff would stipulate to reduce the verdict to the sum of $2,000. That stipulation was made by the claimant, and thereupon judgment for $2,000 was entered. Neither the employer nor the carrier approved of or consented to the making of the stipulation. Thereafter the claimant continued the prosecution of his claim for deficiency compensation under the Workmen’s Compensation Law, and the State Industrial Board, over objection, made an award directing the employer and carrier to pay to the claimant $2,830. The employer and carrier resist the award here on the ground that the claimant, by his stipulation, compromised his third party action and destroyed the employer’s right to subrogation, within the meaning of section 29 of the law mentioned. That section provides: “A compromise of any such cause of action by the employee or his dependents at an amount less than the compensation provided for by this chapter shall be made only * * * with the written approval of the person, association, corporation, or insurance carrier liable to pay the same.” It is urged by the claimant that his action against the third party was not compromised by him; that the damages were fixed by the court after hearing all the evidence, the same as would have been done had the case been tried before the court without a jury; that the ruling of the court was that the verdict of the jury was excessive, and, therefore, set it aside; and that the claimant was free, under the statute, to accept the amount of damages as found by the court. And claimant also urges that he had the right, before trial, to waive a jury, and that what was done after the trial was the equivalent of such waiver of a jury trial. He insists that the judgment entered was one obtained according to common practice. The Civil Practice Act (§ 425) provides that an action in which the complaint demands judgment for a sum of money only must be tried by a jury, unless a jury trial is waived, or a reference directed. And section 426 provides the manner in which such waiver may be effected by a party, viz., by failure to appear at the trial; by filing a written waiver signed by his attorney; by oral consent in open court entered in the minutes; by moving the case for trial without a jury,' or failing to claim a jury trial when his adversary moves for trial before the court; and, in the counties of New York city, by failing to serve with the note of issue a demand for a trial by jury. [34] In the case under review neither of the parties resorted to any of the means fixed by the statute for the waiver of a jury trial. And there is nothing in the record to indicate that either of the parties intended, before the verdict, to try the case before the court without a jury. There was in fact a jury trial. There was a question of fact involved, and the court had no power, without the consent of both parties, to direct a verdict, or to assess the damages. The verdict having been held to be excessive, there was no power in the court to direct or to permit the entry of the judgment in question, apart from the stipulation of the claimant. In these circumstances we are constrained to hold that the judgment was entered, not upon a trial by the court, but upon the consent of the claimant; and without such consent there could have been no judgment. This was a compromise of the action, within the purview of section 29 of the Workmen's Compensation Law. (See Matter of Roth v. Harlem Funeral Car Co., Inc., 243 App. Div. 459; affd., 268 N. Y. 661.) The award should be reversed, and the claim dismissed. Hill, P. J., Rhodes and Crapser, JJ., concur; Bliss, J., dissents, with an opinion.