On appeal from the Supreme Court.
For the plaintiff-appellant, George F. Lahey, Jr.
For the defendants-respondents, Cox & Walburg (Harry E. Walburg, of counsel).
The opinion of the court was delivered by
PORTER, J. The plaintiff appeals from a judgment of nonsuit entered in the Bergen Circuit of the Supreme Court.
The action is to recover damages for personal injuries claimed to have been suffered by one Meinrod Kaelin because of the negligent operation of an automobile of the defendant Ackerman Bros., Inc., and driven by its servant, defendant Joseph Barboni, at Woodcliff Lakes, this state, on October 13th, 1936. Kaelin resided in New York. He was employed by Henry Pape, Inc., of New York, and met with these injuries during the course of that employment. His employer carried workmen's compensation insurance, covering this risk, with the plaintiff, Zurich General Accident and Liability Insurance Company, Limited.
It appears that Kaelin elected to take compensation under the provisions of the New York Workmen's Compensation statute and that he received an award thereunder. That statute, section 29, provided in effect that where an injured workman elected to take compensation rather than to bring
suit against a third party claimed to be liable for his injuries, such right of action "shall operate as an assignment" for the benefit of the employer, insurance carrier or whoever was liable for the payment of compensation. In the instant case it was the plaintiff insurance company who was liable.
The pertinent part of this section of the statute, under the title "Subrogation to remedies of employes" follows:
"If an employe entitled to compensation under this chapter be injured or killed by the negligence or wrong of another not in the same employ, such injured employe, or in case of death, his dependents, shall, before any suit or any award under this chapter, elect whether to take compensation under this chapter or to pursue his remedy against such other. Such selection shall be evidenced in such manner as the commissioner may by regulation prescribe.
"If such injured employe, or in case of death, his dependents, elect to take compensation under this chapter, the awarding of compensation shall operate as an assignment of the cause of action against such other to the state for the benefit of the state insurance fund, if compensation be payable therefrom, and otherwise to the person, association, corporation or insurance carrier liable for the payment of such compensation. If such fund, person, association, corporation or carrier, as such assignee, recover from such other, either by judgment, settlement or otherwise, a sum in excess of the total amount of compensation awarded to such injured employee or his dependents and the expenses for medical treatment paid by it, together with reasonable and necessary expenditures incurred in effecting such recovery, it shall forthwith pay to such injured employe or his dependents, as the case may be, two-thirds of such excess, and to the extent of two-thirds of any such excess such recovery shall be deemed for the benefit of such employe or his dependents."
It further appears that when the said statute was put in evidence it was agreed between counsel and the court that a motion for nonsuit be argued at that point without prejudice to the plaintiff later putting in evidence as to negligence if the motion was not granted. We are concerned, ...