I concur in the result Once the plaintiff, upon filing a claim, received and accepted benefits under the Workmen’s Compensation Law, no common-law action based on the same facts against the employer was maintainable. The plaintiff cannot have both the benefits under the statute and damages at common law arising out of the same injury. Whether the plaintiff is estopped by the doctrine of res judicata or precluded by the doctrine of election of remedies is not necessary to decide. Under either doctrine this action does not lie (Schmidt v. Carrara, 11 A D 2d 788; Legault v. Brown, 283 App. Div. 303; cf. Matter of Martin v. C. A. Prods. Co., 8 N Y 2d 226; Doca v. Federal Stevedoring Co., 280 App. Div. 940, affd. 305 N. Y. 648; Matter of Doca v. Federal Stevedoring Co., 308 N. Y. 44).
Christ and Brennan, JJ., concur with Gulotta, J.; Hopkins, Acting P. J., concurs in result, with a separate opinion, in which Benjamin, J., concurs.
Order reversed, on the law, with $10 costs and disbursements, and motion granted.