McGlone v. Nann ( 1938 )

Gregg, J.

This is an action brought by the plaintiff, an employee of the Syracuse Coca-Cola Bottling Company, to recover damages for injuries which he received in the course of his employment, due to the alleged negligence of the defendants. The Coca-Cola Company complied with the requirements of the Workmen’s Compensation Law. The plaintiff did not accept compensation but has seen fit to bring this action against the defendants, third parties. The action was placed on the calendar and preference claimed and granted under subdivision 21 of section 138 of the Civil Practice Act. The defendants now move to vacate the order of preference on the ground that subdivision 1 of section 29 of the Workmen’s Compensation Law has been amended by chapter 684 of the Laws of 1937 and that such amendment removes the right of the plaintiff to a preference in the trial of his case.

In my judgment, the purpose of the statute originally was to grant an injured employee, whose income was cut off, a speedy trial if he elected to sue a third party instead of taking compensation. While the above-noted amendment now gives him the right to take compensation and sue a third party at the same time I do not believe that it was the intention of the Legislature to cut him off from the right of preference and a speedy trial.

I, therefore, deny the motion to vacate the order granting a preference.