Claim of Holdren v. Rupp , 122 N.Y.S.2d 441 ( 1953 )

The Special Fund for Reopened Cases under section 25-a has appealed from a decision and award of the Workmen’s Compensation Board in favor of claimant on his reopened claim, which discharged the insurance carrier from liability. Employer was a building wrecker. On March 19, 1938, while operating a compressor drill in the regular course of employment, claimant was seriously injured by the collapse of a floor. Subsequently awards were made to him for 33%% of the use of the right hand and for permanent facial disfigurement, which were paid in full and the case closed. On November 15, 1948, claimant applied to the board to reopen his claim for compensation because of disabilities not taken into consideration when the original awards were made. The accident having occurred more than seven years prior to the date of such application and no compensation having been paid within three years previous thereto, the case was reopened as a claim against the Special Fund and insurance carrier placed on notice. On March 10, 1939, claimant had commenced a third-party action of which two trials were had but no decisive jury verdict ever rendered. The action was never settled or dismissed. Special Fund and the carrier both' contend that the claim is barred by reason of claimant’s failure to prosecute the third-party action to a conclusion. During the course of the hearings on reopening claimant offered to assign his third-party claim to the carrier and the Special Fund, which offer was rejected by both. The claim was not one for deficiency compensation, nor does the evidence support appellant’s assertion that claimant is barred by reason of his failure to prosecute the third-party action. (Balsom v. American Biscuit Go., 273 App. Div. 833, affd. 298 N. Y. 567; Matter of Mayrhofer v. Texteel Wire Strip Go., 273 App. Div. 934.) Decision and award unanimously affirmed, with one bill of costs to be divided equally between the respondent board and respondent American Mutual Liability Insurance Company. Present — Foster, P. J., Bergan, Coon, Halpern and Imrie, JJ.