(dissenting). If what is said in the opinion in O’Brien v. Lodi (246 N. Y. 46) is to be applied literally to the facts in this case, then there can be little doubt that the award should be reversed. But we must consider the question actually decided in the O’Brien case in giving effect to the language, “If he settles, as he has a right to do, his cause of action with the third party without the consent of the insurer, he loses his right to the deficiency.”
*207The question decided was that where an employee was injured by the negligence of a third party, and had filed an election to sue and had brought an action against the third party, and had then voluntarily compromised his claim and discontinued the action without the approval of the Commissioner or the carrier liable for compensation, such employee was not entitled to have the release given set aside in the absence of proof that it was obtained by a fraud or misunderstanding.
In the case before us, claimant made no election to sue, and no action was brought. Urged and directed by his employer, who claimed he was not Hable (and there is some evidence that the carrier participated), he accepted from the indemnitor of the third party the sum of $255, signing “ some papers.” Under all the circumstances, I think this amounted to no more than a covenant not to sue. (Walsh v. N. Y. C. & H. R. R. R. Co., 204 N. Y. 58; German Amer. Coffee Co. v. O’ Neil, 102 Misc. 165.) He then made claim for compensation. To the award made, he is admittedly entitled unless he has bartered away his right thereto by accepting a sum voluntarily offered to him without a suit brought. Several decisions in this court, cited in the prevailing opinion, authorized the course taken. We have heretofore held that section 29 of the Workmen’s Compensation Law (as amd. by Laws of 1924, chap. 499) did not apply to this situation further than to reduce the award against the employer and carrier by the amount received in compromise. That reduction was made in this award. I do not favor the change of doctrine long estabHshed, in the absence of decision of the Court of Appeals on the precise point.
It is Hkely that the third party settles at his peril before suit is brought; and if the employee makes claim and receives compensation, the cause of action is assigned to the carrier free from the claim of accord and satisfaction with the claimant. But it is unnecessary to determine that question.
I think the award should be modified by deducting therefrom the sum of $200 already paid, but inadvertently included, and as so modified, the award should be affirmed.
Hill, J., concurs.
Award reversed and claim dismissed, with costs against the State Industrial Board.