The husband of the claimant while in the course of his employment was injured on May 7, 1918, through the negligence of a third party. He recovered a judgment against that party for $30,000 which he settled for $7,500 without the consent of his employer, which consent was required by section 29 of the Workmen's Compensation Law (as amd. by Laws of 1917, chap. 705). Thereafter, and on January 22, 1919, he died, admittedly in consequence of his said injury. His widow makes a claim herein in behalf of herself and her children which claim has been recognized by the Commission and an award made in their behalf against the employer who appeals therefrom.
The settlement of the judgment by the employee did not affect his claim against his employer except as to the amount received on such settlement. (Matter of Woodward v. Conklin & Son, Inc., 171 App. Div. 736.) A settlement by the claimant herself with the third party would not affect her claim against the employer, except as to the amount received by her on such settlement. (Matter of Malta v. Dennings Point Brick Works, 224 N. Y. 596.) It necessarily follows that the settlement by the employee in his lifetime did not'destroy the claim of his dependents after his death.
It remains to be considered whether the amount received by the employee on such settlement should be applied against the claim of his dependents. Said section 29 bestows upon them- a cause of action independent of any cause of action which existed at common law or by any other statute. Such cause of action is not derived from any right or benefit which existed in favor of the injured employee, but springs into existence as an original right at his death under conditions making the statute applicable and the employer hable. That was substantially held in Travelers Insurance Co. v. Padula Co. (224 N. Y. 397). It follows that the dependents are not chargeable with what they have not received.
It appears, however, that some of the money paid on the settlement of the judgment is now in the possession of the claimant. Such portion as may have been used or expended by her husband is not to any extent chargeable against her but she should be charged to the extent of the money paid *52on the judgment and which she has actually received. This is on the principle of “ subrogation to remedies of employees ” given by said section 29. The statute makes the employer liable for " the deficiency, if any, between the amount of the recovery against such other person actually collected, and the compensation provided or estimated by this chapter for such case.” As applied to the widow and children the question is not how much has been actually collected by the employee but how much has been actually collected by them. This principle was applied by this court in Dietz v. Solomonwitz (179 App. Div. 560) and counsel for the Commission concedes that the amount received by the widow herein should be credited to the employer. That has not been done. There is some uncertainty in the record as to the correct amount which the claimant has received, and the proceeding must, therefore, be remitted to the Commission to determine that amount and to make the proper application thereof in favor of the employer.
The award should, therefore, be reversed and the matter remitted to the Commission.
All concur, Kiley, J., with separate opinion.