The claimant, nineteen years old, was injured on November 15, 1918. A claim for compensation was mailed to the commission within a year but was not received. This was not such a filing as is required by section 28 of the Workmen's Compensation Law (Cons. Laws, ch. 67). (Sweeney v. State, 225 N.Y. 271.) Nor was the claim actually filed until February 4, 1921. A hearing was thereafter had before the commission. To it the Ætna Life Insurance Company, as the carrier, was made a party. It objected to any award because of this delay. The employer was the claimant's father and not unnaturally failed to join in this objection. An award against both employer and carrier was made which has been affirmed by the Appellate Division. This result may not be sustained.
We are not dealing with the situation where the employer is the sole party to the proceeding. Whether or not in the absence of fraud or collusion in such a case the statute is so worded as to conclude the carrier by the award *Page 50 we do not decide. (Harrison v. Clark, 87 N.Y. 572.) As to the employer the carrier is merely an insurer and its rights and liabilities under that aspect we do not consider. As to the employee the Ætna Life Insurance Company is a surety. (Workmen's Compensation Law, sections 10, 11, 13, 26.) A party to the hearing, the award is against it as well as against the employer. By this award the carrier is directly and finally bound.
As a party we should ordinarily assume that it might be heard and might present any defense that would relieve it of liability. Clear language must be used before we could hold that the legislature intended to deprive it of that right. The statute before us shows no such design. The carrier may demand the presence of its own physician at the time of the medical examination of the employee. (Sec. 19.) Obviously the object is that it may be prepared to protect its interests. Either party may present evidence and be represented by counsel at the hearing. (Sec. 20.) "Any party in interest" may appeal. (Sec. 23.) References are made to a contest by the employer and carrier. (Sec. 25.) In the same section it is provided that "No case shall be closed without notice to all parties interested and without giving all such parties an opportunity to be heard." Section 28, to which we have referred, reinforces this view. "The right to claim compensation * * * shall be forever barred unless within one year after the accident * * * a claim for compensation thereunder shall be filed * * * but the employer and insurance carrier shall be deemed to have waived the bar of the statute unless the objection of the failure to file the claim * * * is raised before the commission on the hearing. * * *" Not "raised by the employer" but "raised before the commission."
All this implies the right of the carrier, made a party to the proceeding, to be heard independently of the employer. *Page 51 Quite conceivably the rights of the two may be in conflict. Such, as we understand it, has been the practice of the commission in the past and such practice has been approved by us. In Matter ofSkoczlois v. Vinocour (221 N.Y. 276) we held that the commission might determine the validity of an independent defense on the part of the carrier — in that case whether a policy had been canceled — and we entertained an appeal taken by the carrier alone. If, we said, an insurance company may be made a party to the original application it would seem to follow necessarily that all its rights may be litigated and determined precisely the same as those of the employer. It may raise the question as to whether the relation of employer and employee existed. We actually passed upon the question whether the accident there involved arose in the course of and out of the claimant's employment. We did not overlook the provisions that jurisdiction of the employer is jurisdiction of the carrier and that the latter is bound by awards rendered against the former. (Sec. 54.) We thought they strengthened our view.
If the carrier may raise the objection the award against it may not be sustained. It is the general rule that a surety is not liable if the original debt is barred by the Statute of Limitations. In such a case no recovery may be had even where the principal has allowed judgment to be taken against him. The surety may avail itself of the statute in an action brought against it. (Dawes v. Shed, 15 Mass. 6; McMullen v.Rafferty, 89 N.Y. 456; Williston on Contracts, 1283.) The same principle is applicable here.
It is also claimed by the respondent that as he was an infant at the time of the accident his rights are saved by reason of section 396 of the Code of Civil Procedure (now Civil Practice Act, sec. 60). We do not think the exception therein made is applicable to this proceeding. Whatever it may have been originally, section *Page 52 28 is now and was as it stood at the time this proceeding was had a statute of limitations. Section 116 provided that in certain cases not including the present, no limitation of time provided in the act shall run. Expressio unius est exclusio alterius. (Matter of O'Esau v. Bliss Co., 188 App. Div. 385.)
The order of the Appellate Division and the award of the state industrial board should be reversed and claim against the Ætna Life Insurance Company dismissed, with costs to the appellant against the state industrial board in this court and in the Appellate Division.
HISCOCK, Ch. J., HOGAN, CARDOZO, POUND, McLAUGHLIN and CRANE, JJ., concur.
Ordered accordingly.