On appeal from the Supreme Court.
For the appellant, Paul Koch.
For the respondents, Carey & Lane.
The opinion of the court was delivered by
WELLS, J. This is an appeal from an order of the Chief Justice denying the application of the petitioner (appellant), made under chapter 199 of the laws of 1915, for an order directing the issuance of an execution to the sheriff of Hudson county, in the sum of $2,461.71, being that portion of an order theretofore made in favor of the petitioner by the workmen's compensation bureau, which was due and payable at the time of said application. The petitioner obtained an award totaling $5,730.34 as compensation on account of the death of her husband who was employed by respondents. The right of the petitioner to this award is not disputed.
At the same time as the claim for compensation was filed, a common law action was commenced by petitioner in the United States District Court against the third party tort feasor, the Lehigh Valley Railroad Company, to recover damages under the Death act of New Jersey for the wrongful death of petitioner's husband. This resulted in a judgment of $5,000, entered by agreement, in favor of the petitioner against the Lehigh Valley Railroad Company, and this judgment has been paid in full.
Pending the determination of the suit against the Lehigh Valley Railroad Company, payments under the compensation award were held up and only $300 of the award (being the
amount allowed for counsel fees) was paid, leaving a balance of $5,430.34 due thereon, payable in quarterly installments, the last payment being due June 18th, 1938.
Respondents claim they are entitled to offset as against this $5,430.34 the sum of $5,000 paid to petitioner by the Lehigh Valley Railroad Company, leaving a balance of $430.34 on the compensation award, which respondents say would not be due for some considerable time but which they offer to pay immediately. Petitioner denies that under the law respondents are entitled to be credited with the $5,000 paid to her by the Lehigh Valley Railroad Company.
The issue to be determined is very narrow. There is no dispute as to the facts. The sole question is as to whether or not under section 3, subdivision 23 (f) of the New Jersey Workmen's Compensation law, an employer against whom a compensation award has been made in favor of an employe, who, while in the performance of the duties of his employment, suffers injury or death through the negligence of a third party, is entitled to be released from the obligation of compensation to the extent of the amount recovered by the employe from the third party.
Inasmuch as counsel for the respondents rely upon the first three paragraphs of subdivision 23 (f) as a basis for their claim and counsel for appellant relies upon the last two paragraphs of the same subdivision as authority for their contention, it might be helpful to cite subdivision 23 (f) in full. It is found in the public laws of 1919, chapter 93, page 212 (which was afterwards amended by public laws 1931, page 705, in respects not pertinent) and is as follows:
"(f) Where a third person or corporation is liable to the employe or his dependents for an injury or death, the existence of a right of compensation from the employer under this statute shall not operate as a bar to the action of the employe or his dependents, nor be regarded as establishing a measure of damage therein. However, in event that the employe or his dependents shall recover from the said third person or corporation, a sum ...