Claim of Crinieri v. Gross ( 1918 )

H. T. Kellogg, J.:

The claimant, having been injured through an accident, brought an action to recover damages against one Marie Gross, alleging that she was his employer, that she had failed to secure compensation for her employees, and that he was injured through her negligence. Marie Gross in her answer alleged that the employer of the claimant was not herself, but one Louis Gross, her husband. The complaint was dismissed. Thereafter the claimant filed a notice of claim in which in answer to the question, “ Name of employer? ” he wrote, “ Louis Gross or Marie Gross, his wife.” The Commission made an award against Louis Gross and Marie Gross, both of whom were found to be the employer of the claimant. A difficulty confronting the Commission was the fact that, if Marie Gross was the employer, the claimant had previously made his election to bring an action against her, and, therefore, could not later have an award upon a claim afterwards filed. (Workmen’s Compensation Law, § 11; Pavia v. Petroleum Iron Works Co., 178 App. Div. 345.) This difficulty was overcome by the very easy method of merely making a finding that the claimant was employed by Marie Gross and Louis Gross jointly, to sue whom as partners an election had never been made. There was no legal evidence that Marie Gross and Louis Gross were employers of the claimant. Moreover, there was no legal evidence that Louis Gross was the employer. Both the notice of injury and the claim for compensation named “ Louis Gross or Marie Gross or both of them.” The only positive evidence upon the subject was given by the claimant, who testified that Marie Gross hired him, directed him and paid him, and in answer to the question, “ You were employed by Marie Gross on the 24th day of March, 1917?” replied, “Yes, sir.” There was, therefore, no foundation whatsoever for the finding of the Commission that the claimant was employed by Marie Gross and Louis Gross. On the contrary, it was proven that he was employed solely by Marie Gross, and as against her the claim was barred by an election previously made.

The award should be reversed and the claim dismissed.

All concurred, except John M. Kellogg, P. J., dissenting, with a memorandum in which Woodward, J., concurred.