The only question on this appeal is the failure of claimant to give notice of his injury within ten days after his disability, as provided by section 18 of the Workmen’s Compensation Law (Consol. Laws, chap. 67; Laws of 1914, chap. 41). He was injured by a piece of splinter from the floor which pierced his shoe and entered his right foot. This occurred November 4, 1915. The Commission has made findings as follows: “By reason of this accident Sicardi laid off from work for nine days until November 13th, and then returned to work and worked to and including March 1, 1916. On March 2, 1916, he went to the hospital and was operated [upon] and the splinter was withdrawn from his foot, and he was not able to return to work until March 28, 1916. He then continued working until the 1st of May, 1916, when he had another operation for the same injury and was disabled from working until May 29, 1916. The claimant failed to give written notice of his injury to his employer within ten days thereof for the reason that he did not consider his injury very serious and it was. not until March 2, 1916, when he went to the hospital that he gave notice of injury to his employer pursuant to the statute. His failure to give notice of injury within the statutory period did not prejudice the employer. ” At the conclusion of the award is the following statement by the Commission: “ The failure of Frank Sicardi to give statutory notice of injury to his employer is hereby excused on the ground that such failure did not prejudice his employer.”
Section 18 requires that a written notice of the injury should be given within ten days after disability, and in case of death within thirty days thereafter. After specifying the details of the notice and the manner in which it may be given, the section concludes as follows: “The failure to give such notice, unless excused by the Commission either on the ground that *15notice for some sufficient reason could not have been given, or on the ground that the State fund, insurance company, or employer, as the case may be, has not been prejudiced thereby, shall be a bar to any claim under this chapter.”
In Matter of Bloomfield v. November (219 N. Y. 374), decided by the Court of Appeals December 12, 1916, that court had under consideration the requirement of this statute as to notice and said: “This requirement ought not to be treated as a mere formality or be dispensed with as a matter of course whenever there has been a failure to serve such notice. The Legislature has enumerated reasonable conditions under which failure to serve the notice may be excused and we think that the attention of the Commission should be fastened upon the question whether upon the proofs in a given case the circumstances do exist which are sufficient to justify such failure, and that if they do exist that fact should be properly stated as one of the facts which constitute the basis of the award. We do not think that it is good practice that the service of such notice should be excused without any finding of the existence of conditions which justify such action on the part of the Commission or statement even of the theory on which the excuse has been granted.”
In the present case the findings of the Commission are more explicit than they were in the Bloomfield case and there is a distinct finding that the failure to give the notice “did not prejudice his employer.” This finding was absent in the Bloomfield case. But such finding does not meet the situation or comply with the statute. The failure to give notice may be excused for one of two reasons: First, that it could not have been given. That reason manifestly does not exist in this case. Second, “ on the ground that the State fund, insurance company, or employer, as the case may be, has not been prejudiced thereby.” The word “ employer ” as used in this last sentence of section 18 as indicated by the context means an employer who is a self-insurer, the idea being that it must appear that the State fund, or insurance company, or employer, “ as the case may be,” liable for compensation has not been prejudiced. The notice does not have to be given to the insurance company because by virtue of the statute (§ 54, subd. 2) notice to the *16employer shall he deemed notice to the insurance carrier. But when no notice has been given and there is an insurance carrier, the question is not whether the employer but whether the insurance carrier which must pay the compensation has been prejudiced. In the present case, therefore, if the failure to give notice is to be excused, the ground of the excuse should be that the insurance company has not been prejudiced if such is the fact, and in accordance with the rule declared in the Bloomfield case this should be accompanied by appropriate findings of such facts, circumstances or conditions, if they exist, as to render proper the conclusion that the insurance company has not been prejudiced.
The award should, therefore, be reversed, and the matter remitted to the Commission.
All concurred, except Kellogg, P. J., who dissented in an opinion, in which Lyon, J., concurred.