The employer failed to take out insurance required by the Compensation Law. By section 52 of that law the “ failure *94to secure the payment 'of compensation shall have the effect of enabling the injured employee or Ms dependents to maintain an action for damages in the courts, as prescribed by section eleven of this chapter. ” Section 10 provides the liability for compensation, and section 11 (as amd. by Laws of 1914, chap. 316) reads: “The liability prescribed by the last preceding section shall be exclusive, except that if an employer fail to secure the payment of compensation for his inj ured employees and their dependents as provided in section fifty of this chapter, an injured employee, or Ms legal representative in case death results from the injury, may, at his option, elect to claim compensation under this chapter, or to maintain an action in the courts for damages on account of such injury; and in such an action it shall not be necessary to plead or prove freedom from contributory negligence nor may the defendant plead as a defense that the injury was caused by the negligence of a fellow servant nor that the employee assumed the risk of his employment, nor that the injury was due to the contributory negligence of the employee.” Upon an examination of the whole statute, in connection with the purposes of its enactment, I am convinced that the “ legal representative ” referred to in section 11 means the dependent and not the executor or administrator. In Matter of Woodcock v. Walker (170 App. Div. 4), decided this term, we are holding that the allowance to an infant child is payable to the widow, and in the opinion it is stated: “ It does not seem probable that it was the intention of the Legislature to require the appointment of a general guardian with an attendant expense in order to enable the children to collect the amounts allotted to them under the act.” This “legal representative” may elect either to proceed "under the Compensation Law before the Commission, or to bring an action. By parity of reasoning it is not probable, at least if election be made to proceed under the Compensation Law, that first an executor or administrator must be appointed, with its attendant expense. Such a construction would be contrary to the general scheme of the statute, and would tend to make' a proceeding more complex than would be a proceeding directly by the dependent himself. A dependent who was not a next of kin and not a creditor would have no standing in a Surrogate’s *95Court to compel the appointment of a “ legal representative, ” as the term is sought to be interpreted by defendant. The ordinary action for negligence given to the personal representative of a deceased is brought for the benefit of next of kin. (Code Civ. Proc. § 1902 et seq.) The action here authorized is brought for the benefit of certaip dependents, and must be decided upon rules of law differing materially from those which govern the ordinary action for negligence by the personal .representative.
Again. This election to be made either to proceed under the Compensation Law or by separate action, would more naturally be made by those directly interested than by any one representing the estate as- a personal representative. It may be suggested that there might be difficulties in case some- of the dependents might elect one course and some another. The answer to that suggestion would seem to rest in the provision of section 29, which provides in a certain case for the election by dependents, and provides that “ such election shall be evidenced in such manner as the Commission may by rule or regulation prescribe.” So election under section 11 might be exercised “in such manner as the Commission may by rule or regulation prescribe. ”
Notwithstanding this conclusion I am of the opinion that the matter should be sent back to the Commission to ascertain the exact status of the deceased, through whom claimants assert their claims. The defendant before the Commission apparently relied upon its legal ground that the proceeding could only be brought by a personal representative appointed by the surrogate, although the objection was never formally taken until this appeal. If this matter be sent back to the Commission the contract under which the claimed employee was acting may be introduced in evidence and his exact relation to the employer be established. In my judgment this award should be set aside and the matter referred back to the Commission, that opportunity may be given to the defendant to introduce such evidence as it may desire upon the nature of the employment of the deceased.
All concurred, Howard, J., in result in opinion, except Woodward, J., who voted to reverse and to disallow the claim.