Woodward, J. (concurring):
The award made by the State Industrial Commission was correctly reached and should be affirmed. The fact that the claimant executed a release of the Binghamton Railway Company from liability to him for the injuries which he received while driving a mule across that company’s tracks does not destroy or in-this instance affect his right to recover the compensation provided by the Workmen’s Compensation Law.
In this particular case it does not appear that the Binghamton Railway Company was guilty of any negligence which operated as a cause of the claimant’s injuries, and it affirmatively appears that the release was executed and delivered without payment to the claimant of any money or other consideration whatsoever. I think, however, that our decision of this appeal may well proceed upon the broader ground which makes no assumption of the non-liability of the recipient of the release or the absence of consideration for its execution. The purpose in the enactment of the Workmen’s Compensation Law was to secure and insure to injured workers and their dependents the continued payment of a stipulated portion of their weekly earnings. This was to be done in order that trade accidents might be made a trade liability — a charge against - the cost of the trade product — and not left to fall harshly and exclusively upon the injured worker and his family. To this end it was deemed desirable that the employer, through one of specified methods, should become responsible for seeing to it that payment of compensation was promptly and regularly made in the amount authorized by the statute regardless of whether the injury was in fact caused by some third person and was not due to anything arising in the ordinary' course of the employer’s business and under his sole control. One of the f.liip.f P.nds in view was to protect the worker from being com-*741polled to resort to protracted and uncertain litigation for the establishment of his right to reimbursement on the one hand and to protect him likewise from his own improvidence, shortsightedness, lack of knowledge and urgency of financial necessities as factors entering into compromise or settlement negotiations concerning claims for injury.
As this court has hitherto observed, the Workmen’s Compensation Law should be remedially and beneficially construed to effectuate the obvious legislative purpose. The appellant employer and insurance carrier contend here for a construction of the statute which would seriously cripple its efficacy. It is altogether clear, whether or not the claimant was injured through negligence on the part of the railway company, and whether or not the claimant received any consideration from the company for the execution of the release, that the statute does not, and the rules which the Commission has adopted under the explicit authority of section 29 of the act do not, permit the execution of a release by the claimant in favor of a third person to be construed as an election by the injured person to proceed by suit rather than by taking compensation under the act. The claimant here concededly served no notice of election to proceed by suit, and neither the employer nor the insurance carrier consented to or approved the execution of the release to the railway company. Even the bringing of suit and the obtaining of judgment against the third party would not, under the statute, discharge the insurer unless his recovery in the action amounts to as much as the compensation provided for by the statute. In the event he recovers less than the statute provides may be granted as compensation, the insurer is liable only for the making up of the deficiency.
Where the injured person seeks compensation under the act his cause of action, if any, against any and all third persons in connection with the injuries is transferred to the insurance carrier, and the latter thereupon is subrogated to all the rights of the claimant by way of suit for damages by reason of the tort. In order that the insurer may be fully protected against the very thing which, perhaps, the injured man tried to do in this case, the statute explicitly provides that “ a compromise of any such cause of action by the workman or his dependents at *742an amount less than the compensation provided for by this chapter shall be made only * * * with the written approval of the person, association or corporation liable to pay the same.” (Consol. Laws, chap. 67 [Laws of 1914, chap. 41], § 29.) No release executed by the claimant at bar without the consent of the insurer could, therefore, have any effect upon an action by the insurer against the railway company, except that if the railway company paid any thing to the claimant — as was not the case here — the railway company is liable to the insurer and the insurer to the claimant only for the difference between'the amount paid and the total of compensation payable under the statute.
Award unanimously affirmed.