Supreme Court, January, 1918. [Vol. 102. There is no dispute as to the facts, and the only question is whether the title to the cause of action had passed out of plaintiff as matter of law. Evidence having been offered for defendant, the motion should properly have been to direct a verdict for defendant, and, there being concededly no question of fact, it may be so treated. Niagara Falls Fire Ins. Co. v. Campbell Stores, 101 App. Div. 400; Sheldon v. George, 132 id. 470; Dillon v. Cockcroft, 90 N. Y. 649; Westervelt v. Phelps, 171 id. 212; Appleby v. Astor Fire Ins. Co., 54 id. 253. Plaintiff, an employee of the Collette Company, was struck by a chain operated by defendant. He filed with the commission notice of an election to sue defendant as a third party under the provisions of the Workmen's Compensation Law, subsequently withdrew it and filed a claim against the employer accompanied by an assignment in the form prescribed by the commission of any claim against third parties. The claim was allowed by the commission and an award made. It was not paid by the employer, who notified defendant of the award and, claiming to be subrogated to the employee's rights against defendant, called upon defendant to pay it. Thereafter this action was commenced. Subsequently defendant paid the amount of the award to the commission and received a release from the employer releasing defendant from all liability for any claim arising out of plaintiff's injury. The commission sent its check for the amount of the award to plaintiff, who refused to accept it. Thereafter plaintiff, on notice to the employer, but not to defendant, applied to the commission to withdraw his claim against the employer, claiming that the employer had failed to secure the payment of compensation as provided in section 50 of the act. The commission allowed the claim to be withdrawn and apparently set aside the award. Misc.] Supreme Court, January, 1918. Construing section 29 of the Workmen's Compensasation Law in connection with the other provisions of that statute, its plain intent, purpose and effect is that an employee has, where injured by the negligence of one other than the employer and not in the same employ, the choice of remedies, viz., his claim under the act against the employer or his cause of action at law against such other person, and that in the former event the cause of action against such other person must be surrendered to the state for the benefit of the state insurance fund or to the person liable to pay. The act created a new remedy and was designed to make trade accidents a trade liability in cases coming within its provisions; the liability of employers was extended, and they, or the persons liable to pay the compensation, were subrogated by way of indemnity to all claims of the employees against others who caused the injury. The statute deals directly only with the liability of the employer. It neither impairs nor adds to the employee's common-law rights against third parties. He has the option of pursuing those rights as if the statute never existed, or he may take compensation under the act, in which case he surrenders, for the benefit of the party paying, the cause of action against third parties, or he may pursue the action at law against the third parties and claim under the statute the difference, if any, between the recovery at law and the compensation he would be entitled to under the act, giving notice of the election in order that the party liable under the act may have an opportunity to protect his interest. Lester v. Otis Elevator Co., 169 App. Div. 613; Miller v. New York Railways Co., 171 id. 316; Matter of Woodward v. Conklin & Son, Inc., Id. 140; Dietz v. Solomonwitz, N. Y. L. J. Sept. 24, 1917. There is no dispute as to these general principles, Supreme Court, January, 1918. [Vol. 102. but plaintiff contends that until payment of the award the assignment of the cause of action is not effective. The original act, as amended by chapter 41, Laws of 1914, section 29, provided: "If a workman entitled to compensation under this chapter be injured or killed by the negligence or wrong of another not in the same employ, such injured workman, or in case of death, his dependents, shall, before any suit or claim under this chapter, elect whether to take compensation under this chapter or to pursue his remedy against such other. Such election shall be evidenced in such manner as the commission may by rule or regulation prescribe. If he elect to take compensation under this chapter, the cause of action against such other shall be assigned to the state for the benefit of the state insurance fund, if compensation be payable therefrom, and otherwise to the person or association or corporation liable for the payment of such compensation, and if he elect to proceed against such other, the state insurance fund, person or association or corporation, as the case may be, shall contribute only the deficiency, if any, between the amount of the recovery against such other person actually collected, and the compensation provided or estimated by this chapter for such case. Such a cause of action assigned to the state may be prosecuted or compromised by the commission. A compromise of any such cause of action by the workman 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 commission, if the deficiency of compensation would be payable from the state insurance fund, and otherwise with the written approval of the person, association or corporation liable to pay the same." The words "before any suit or claim" were held to Misc.] Supreme Court, January, 1918. refer to suits or claims under this act. Lester v. Otis Elevator Co., 169 App. Div. 613. By chapter 705, Laws of 1917, section 29 was amended so as to substitute for the words "before any suit or claim" the words "before any suit or any award," and in place of the words "the cause of action against such other shall be assigned to the state" the words "the awarding of compensation shall operate as an assignment of the cause of action against such other to the state." The manifest purpose of the change was to make the transfer of title operative under the statute without formal instrument of assignment, and was apparently intended to simplify the procedure, especially in cases of death benefits and next of kin, and the time of the divesting of title was expressly fixed at the awarding of compensation. This case comes under the original act. By the forms prescribed by the commission, section 76, a formal transfer or assignment was included in and made part of the "Employee's Claim for Compensation" filed with the commission, and as part of his claim plaintiff executed such an assignment in this case, which expressly reads "in consideration of the compensation, if any, when awarded." The language of the act that "such injured workshall before any suit or claim under Such election shall be man this chapter elect. evidenced in such manner as the commission may There is nothing to indicate that the divesting of title was intended to be postponed until payment of the award. On the contrary, the plain express import is that it should take effect on the election, and the forms Supreme Court, January, 1918. [Vol. 102 prescribed by the commission, containing a formal assignment, and the language of the assignment itself, all evidence the same intent. The amendment of 1917 points in the same direction. As above stated, its purpose was to dispense with the formal instrument of assignment; it evidently postponed rather than advanced the time of transfer of title. The act makes special provisions for the enforcement of payment of the award, and it was evidently the intention that those who had received an award should be relegated to these remedies for its payment. In Miller v. New York Railways Co., 171 App. Div. 316, above cited, it was held in an action by an employee against a third person that the fact that the employee had made claim for compensation under the act and received an award was a good defense. An examination of the record of that case shows that, as matter of fact, the award had been paid, but such circumstance was not relied on in the opinion. Under a statute of Wisconsin, very similar to the New York statute, it was expressly held that the transfer of title did not await the payment of the award. McGarvey v. Independent Oil & Grease Co., 146 N. W. Rep. 895; Pawlak v. Hayes, 156 id. 465. Payments of compensation awarded are made periodically, not in one sum (§ 25), and this fact alone is sufficient to show that the divesting of title must depend on the claim or award and not payment; any other contention would seem quite impracticable. Moreover, it is scarcely conceivable that it was intended an employee might speculate with the commission, try for the award, and if not satisfied abandon the proceedings and sue the third parties. A somewhat similar case was decided in Pavia v. Petroleum Iron Works Co., 178 App. Div. 345. There the employee had elected to seek compensation, whereas, |