ed, had it been admitted, the falsity of his present testimony, there are sufficient facts proved to sustain the conclusion that, at most, the promise of the defendant Thomas to furnish evidence of Hamilton's liability was only a part of the consideration, and a very minor part, for the plaintiff himself states that he placed no reliance upon it and did not believe it. As was pointed out by the Court of Appeals, even if Thomas had been put in default by failure after demand to furnish this proof, it would have constituted at most a partial failure of consideration, which might give rise to an action for damages, but would not violate the release. 212 N. Y. 274, 106 N. E. 69, 72. The court further says that:

"It does not appear that there has been any failure on the part of Edward R. Thomas to show the transactions of the members of the pool under such alleged promise."

In an attempt to meet this criticism, the day before the commencement of the second trial, the plaintiff's attorneys served on the attorneys for the defendant Thomas a demand that he produce, on the next day and all subsequent days, all books and writings containing or relating to the accounts of the firms of Thomas & Post and Thomas & Thomas with the pool syndicate or partnerships, known or designated as the "K. K. Syndicate." The firms of Thomas & Post and Thomas & Thomas had been dissolved many years prior to this time, and Edward R. Thomas was, at the time the notice was given, absent from the country, to the plaintiff's knowledge. The demand evidently was not made in good faith to secure the evidence, but merely as a foundation of claiming a default in performance. Such demand was futile. The default must have existed at the commencement of the action, and a demand made nine years after that date could not establish evidence of a default prior thereto. Again, Thomas was to be released, and the promise, therefore, must have referred to furnishing the proof in an action to establish the several liability of Hamilton for the one-third which Thomas contended was not his liability. Thomas' counsel, however, before the plaintiff closed his case, and within a month after the service of the demand, stated that he had located the books in a storage warehouse, and offered to produce them, or any part thereof, that counsel desired. Plaintiff's attorney did not avail himself of this offer, and objected to the reception of the said accounts in evidence when offered by the defendant Thomas, and now justifies his objection on the ground that evidence of the dealings as between. the partners was not material to this trial, as the rights of the defendants inter sese could not be determined therein, thus giving force to the suggestion that the demand was made merely for the purpose of creating a condition on which to predicate a formal default.

[8, 9] There can be no doubt that the prime consideration for the release was the payment of the $30,000 and the taking up of the stock; nor can there be any question that it was the intention to release Edward R. Thomas from further liability on account of the K. K. acAs was pointed out by the Court of Appeals, there was a controversy between the parties as to Thomas' liability; the plaintiff claiming that Thomas was liable jointly with Hamilton for the balance

count.

due, while Thomas contended that he was severally liable for twothirds of the original indebtedness, which he had already satisfied. Whichever view was correct is immaterial. The claim was made by Thomas in good faith. When he took over the interest of O. F. Thomas, he wrote to the plaintiff's firm, informing them of the fact, and stated:

"I wish it clearly understood that my present interest in this pool is a two-thirds interest, and that I am responsible for two-thirds of its losses and am entitled to two-thirds of its profits after I am credited with $50,000 margin, which I now have on my two-thirds share in excess of Mr. Hamilton's proportionate margin, the other one-third being owned by Mr. C. A. Hamilton; that this account is in no sense a joint account. In other words, myself and Mr. Hamilton are each liable for one share, and not for the share of the other."

And he asked for a confirmation of the receipt of the latter. To this Post & Co. replied:

"Concerning the Keokuk & Des Moines syndicate [the K. K. account] we now understand that you are the sole owner and liable for two-thirds of the same and that Mr. O. F. Thomas has no interest in said syndicate; the remaining one-third being the property of C. A. Hamilton."

The learned referee has held that this latter was a mere acknowledgment of the receipt of the letter, but it was more than this. It was an acceptance by the plaintiff of the notice of the liabilities of the parties to that account, and an assent thereto. If they did not intend to assent, they should immediately have notified the defendant that they should hold him to a joint liability. This they did not do. That there was an actual controversy is further shown by Post's letter to Hamilton, dated the day before the matter was finally consummated, but after the agreement had been reached, in which he stated that there was a debit balance of $74,916.38 and interest, and states: "I have consulted with Mr. E. R. Thomas, and he states that this represents your one-third interest in the syndicate; he having taken up his proportion. Of course, I cannot be responsible for any settlement between you and Mr. Thomas, and therefore I hold you and him jointly"

-thus showing an assertion on plaintiff's part of a joint liability, and on defendant Thomas' part of a several liability, which on his part had been satisfied. The parties reached an accord of the controversy by Thomas agreeing to pay $30,000 and take up the stock, and the plaintiff agreeing to accept the same and give a release, and when the transaction was complete there was an accord and satisfaction. Plaintiff thereafter had no claim upon Thomas on account of the K. K.

account.

The judgment should be reversed, with costs to both defendants, and judgment directed, dismissing the complaint as to Hamilton, with costs, and for defendant Edward R. Thomas upon the merits, with costs.

As to the appeals from the order, we have already indicated that the order appointing the referee and sending the issues as to the defendant Hamilton was not erroneous; but we further say that an appeal from the order appointing a referee should be appealed from directly, and should not be brought up on the appeal from the judg

ment. Having determined to reverse the judgment, we do not consider it necessary to pass upon the other orders brought up by the notice of appeal.

Findings inconsistent with this opinion are reversed. Submit on notice findings in place thereof. Settle order on notice. All concur.

HANKE v. NEW YORK CONSOL. R. CO.

(Supreme Court, Appellate Division, Second Department. December 21, 1917.) 1. MASTER AND SERVANT 354-WORKMEN'S COMPENSATION ACT-ELECTION. Under Workmen's Compensation Act (Consol. Laws, c. 67) § 29, providing for election between remedies when employé is injured or killed by negligence of another not in the same employ, and for subrogation if compensation is paid, a widow with dependent child may, for herself and child, make an election.

2. MASTER AND SERVANT 354-WORKMEN'S COMPENSATION ACT-ELECTION. Workmen's Compensation Act, § 29, providing for election between remedies when employé is injured or killed by another's negligence, and for subrogation if compensation is paid, but not specifically providing for election by minors, was merely clarified, and not substantially altered, by Laws 1916, c. 622, § 7, providing for election of remedies by minors, or their parents or guardians, as the commission determines.

Appeal from Trial Term, Kings County.

Action by Caroline Hanke, as administratrix of Antonio Hanke, deceased, against the New York Consolidated Railroad Company. Judgment on directed verdict for defendant, and plaintiff appeals. Affirmed.

Argued before JENKS, P. J., and THOMAS, STAPLETON, RICH, and BLACKMAR, JJ.

Ralph G. Barclay, of Brooklyn, for appellant.

Harold L. Warner, of New York City (D. A. Marsh, of Brooklyn, on the brief), for respondent.

STAPLETON, J. The death of plaintiff's intestate occurred while he was in a hazardous employment. His employer was the Transit Development Company, a domestic corporation. A verdict was directed against her in this action, and from the judgment entered upon it this appeal is taken.

We will assume that the evidence made it a question of fact for the jury to determine whether the neglect of the defendant was a proximate cause of the injuries from which death ensued, and that, unless a separate defense pleaded in the answer barred the plaintiff's recovery, a verdict should not have been directed.

The facts alleged as constituting that defense are that the deceased was employed by the Transit Development Company in a hazardous employment, within the meaning of the Workmen's Compensation Law (chapter 41 of the Laws of 1914, as amended by chapter 316 of the Laws of 1914, constituting chapter 67 of the Consolidated Laws); that his death resulted from an accidental personal injury arising out of

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

and in the course of his employment, and that the Transit Development Company, on or about July 1, 1914, secured, and has ever since kept secure, the payment of compensation for the disability or death of its employés, as required by the Workmen's Compensation Law, under and in pursuance of subdivision 3 of section 50 of that law. All of this was admitted on the trial. The answer further alleged that Caroline Hanke, widow of the deceased, on behalf of herself and her child, Casimier Hanke, who was 12 days of age at the time of the father's death, filed on January 29, 1915, in accordance with the provisions of the Workmen's Compensation Law, a claim for compensation, and elected to take compensation from the Transit Development Company; that on March 16, 1915, the Workmen's Compensation Commission made an award to said Caroline Hanke and Casimier Hanke; and that all payments under such award, accruing to a given date, had been paid to and accepted by the said Caroline Hanke and Casimier Hanke. It also alleged that on April 20, 1915, the Transit Development Company commenced an action against the defendant to recover upon the cause of action arising out of the injury and death of said Antonio Hanke, the deceased, claiming to be subrogated to the rights and remedies of such Caroline Hanke and Casimier Hanke.

Evidence, not disputed, was offered on the trial in proof of the facts alleged. Among the documents received in evidence was a record of the proceeding in the matter of the claim of Caroline Hanke to recover for the death of her husband, including the findings of the Workmen's Compensation Commission and the award made by the Commission to both Caroline Hanke and Casimier Hanke. That record shows that the commission awarded to Caroline and her child biweekly payments of $10.84, of which $8.14 was for herself and $2.70 for the child. She received and accepted payments under that award. She made application to the commission to withdraw her claim for compensation, and her application was denied on the ground that an award had been made and that she had accepted payments on account thereof.

Section 29 of the Workmen's Compensation Law, as it was at the time of the death of the intestate, read:

"Sec. 29. Subrogation to Remedies of Employé. 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." Laws 1914, c. 41.

A point in the brief of the appellant presents this statute for interpretation. The point is stated:

"The claim for compensation should not be construed as an election, or as an assignment, and in any event not an election or assignment upon the part of the infant, Casimier."

In developing her point, the appellant argues that the election and assignment are invalid, for the reason that on the date she signed the instrument in which she made the claim for compensation under section 16 of the Workmen's Compensation Law and assigned the cause of action against the defendant, she was not in a position to make any election between the claim and the remedy by suit against the defendant tort-feasor, because, not then being administratrix, she had no control over the action for death given by the Code of Civil Procedure, and had no power or authority to waive it or assign it; and, furthermore, if she could elect to waive her own benefits accruing from a suit to recover for damages for the pecuniary injury she suffered through the death of her husband, and assign her claim, she could not, in her private capacity, waive or assign the claim of the other beneficiary, the decedent's child.

In support of her contention she offers the decision in Stuber v. McEntee, 142 N. Y. 200, 36 N. E. 878. That action was one by an administrator to recover damages in an action brought under sections 1902 to 1905 of the Code of Civil Procedure. The defendant paid a sum of money to one of the plaintiffs, not a statutory beneficiary, before his appointment as administrator of the goods, chattels, and credits which were of the decedent whose death was caused by the defendant's neglect. The plaintiff, who received the money, gave therefor a receipt which stated that the payment was for all expenses caused by the death and that he had no further claim against the defendant. The court held that the receipt was not a settlement of the claim or a bar to the action.

The appellant directs attention to the fact that after the action at bar was commenced, and by chapter 622 of the Laws of 1916, the Workmen's Compensation Law was amended by adding to section 29 thereof the following provision:

"Whenever an employé is killed by the negligence or wrong of another not in the same employ and the dependents of such employé entitled to compensation under this chapter are minors, such election to take compensation and the assignment of the cause of action against such other and such notice of election to pursue a remedy against such other shall be made by such minor, or shall be made on behalf of such minor by a parent of such minor, or by his or her duly appointed guardian, as the commission may determine by rule in each case."

It is now desirable to expose section 16 of the Workmen's Compensation Law:

"Sec. 16. Death Benefits. If the injury causes death, the compensation shall be known as a death benefit and shall be payable in the amount and to or for the benefit of the persons following: