Christison v. Wallace

938 The Workmen’s Compensation Law (§ 29) provides, in substance, that unless the injured servant brings action against a third party, claimed to be liable by reason of his negligence, within six months after an award, or within one year after the accident, such failure shall operate as an assignment of the cause of action to the insurance carrier liable for the payment of such compensation. We are of opinion that the cause of action passed out of the plaintiff by operation of law upon his failure to prosecute it within the period prescribed by section 29 of the Workmen’s Compensation Law and, therefore, is not affected by the provisions of the Civil Practice Act (§ 49, subd. 6) prescribing a limitation of three years within which such an action may be brought. (Calagna v. Sheppard-Pollak, Inc., 264 App. Div. 589.) McCue v. Shea Co., Inc. (175 Misc. 557; affd., without opinion 260 App. Div. 946), in so far as it holds to the contrary, is overruled. Hagarty, Johnston and Close, JJ., concur; Adel, J., concurs in the result; Taylor, J.: I dissent and vote to affirm. (Vicie, McCue v. Shea Co., Inc., supra.) I am not in accord with the ruling in Calagna v. Sheppard-Pollah, Inc., {supra).