(dissenting). The decision of this appeal depends upon the application of the two-year Statute of Linn tations imposed by section 28 of the Workmen’s Compensation Law. Claimant contracted an occupational disease while in the service of her special employer. The fact that a workman has a general and a special employer is not inconsistent with the relationship of employer and employee between both of them and himself (Matter of De Noyer v. Cavanaugh, 221 N. Y. 273; Matter of Dennison v. Peckham Road Corp., 295 N. Y. 457). Depending upon the facts of the case, the employee may recover against either or both the general and special employer. It is assumed that in this case an award might have been made in favor of the claimant against either or both of these employers. An award was made by the Workmen’s Compensation Board against claimant’s special employer but not against her general employer. The award against the special employer would be upheld, under the facts of this case, if the claim against the special employer had been filed within the time limited by section 28. That was not done. More than two years elapsed without the filing of any claim after the termination of claimant’s employment by the special employer and the contraction of her occupational disease.
The Appellate Division has held that the Statute of Limitations has been tolled against claimant’s special employer for the reason that an advance payment of workmen’s compensation was made to her by her general employer. That advance payment, made in this instance by furnishing hospital and medical care, has the effect of extending the Statute of Limitations prescribed by section 28 against the employer who made the payment (Matter of Pogue v. Crouse Irving Hosp., 281 App. Div. 931, motion for leave to appeal denied 306 N. Y. 979), but it has no such effect against an employer by whom no payment has been made.
*485Under section 59 of the Civil Practice Act, a payment upon an obligation results in extending the limitation period, in the case of persons jointly or severally liable, but the Statute of Limitations is extended only against the party making the payment. Nothing in the statutes nor in reason makes any distinction in this respect between section 59 of the Civil Practice Act and section 28 of the Workmen’s Compensation Law. In this instance, the payment was made by the general employer, yet the statute was tolled against the special employer. There is not and is not claimed to be any relationship of principal" and agent between parties so situated. The general employer acted for itself, not in behalf of the special employer.
In Peoples Trust Co. v. O’Neil (273 N. Y. 312, 315-316) this court said:
“ It is well settled that a payment in case of a joint liability by one does not extend the statute as to others jointly liable. (Hoover v. Hubbard, 202 N. Y. 289; State Bank of Binghamton v. Mangan, 240 App. Div. 327; affd., 269 N. Y. 598; 1 Williston on The Law of Contracts, § 191.)
“ The same rule applies as to a payment by a principal debtor. It does not have the effect of extending the statute as against a surety. (1 Williston on The Law of Contracts, § 193; Ulster County Sav. Institution v. Deyo, 116 App. Div. 1; affd., 191 N. Y. 505.)
‘' Neither can a payment by a surety extend the statute against the principal. (1 Williston on The Law of Contracts, § 193; Harper v. Fairley, 53 N. Y. 442.)
“ Professor Whiteside in his notes on the Restatement of the Law of Contracts says that section 127 states the New York rule, citing Shoemaker v. Benedict (11 N. Y. 176) and Hoover v. Hubbard (202 N. Y. 289). * * *
‘ ‘ An action on a contract brought after six years from its due date must be brought on the new promise, express or implied, which operates to take the claim out of the statute. The new promise must be made by the one sought to be bound or his agent, duly authorized or his act thereafter ratified.”
The record is barren of any evidence that the special employer, appellant Buffalo General Hospital, was made aware of the fact that a claim was to be made against it, or that it was apprised of the nature of such claim or that it did anything tending to *486cause claimant to delay making a claim, or to authorize claimant’s general employer to act for it in making the advance payment of compensation. It is irrelevant whether appellant sustained prejudice on account of the delay in filing this claim. Prejudice does not enter into whether a claim is barred by the Statute of Limitations.
The order of the Appellate Division affirming the award and decision of the Workmen’s Compensation Board against appellant Buffalo G-eneral Hospital, the special employer, should be reversed and the claim against appellants should be dismissed.
Conwat, Ch. J., Dye and Fuld, JJ., concur with Desmond, J.; Van Voorhis, J., dissents in an opinion in which Froessel and Burke, JJ., concur.
Order affirmed.