Appellant, plaintiff below, appeals from a final decree dismissing his bill of complaint for a mandatory injunction, filed under the provisions of the District of Columbia Workmen’s Compensation Law,1 against defendant Hoage, Deputy Commissioner of the United States Employees’ Compensation Commission. The Indemnity Insurance Company of North America was permitted to intervene. For convenience, appellant will be referred to as plaintiff, the appellee as defendant, and the Insurance Company as intervener.
It appears that plaintiff sustained injuries on December 5, 1928, while employed by the Palais Royal Company of Washington, D. G, as a helper on a delivery truck, for which the intervener was the insurance carrier. On June 10, 1929, plaintiff filed with defendant a notice of his election to sue a third party, namely, the Washington Railway & Electric Company. Suit was instituted July 18, 1929, and on trial in the Supreme Court of the District plaintiff obtained a judgment for $3,000 against the third party. On appeal the judgment was reversed by this court. Washington Railway & Electric Co. v. Chapman, 62 App. D. C. 140, 65 F.(2d) 486. An application to the Supreme Court of the United States for a writ of certiorari was denied October 9, 1933. 290 U. S. 661, 54 S. Ct. 75, 78 L. Ed. 572. The mandate of this court re?versing the judgment was accordingly transmitted to the Supreme Court of the District.
Plaintiff then requested a hearing on his claim for deficiency compensation, and the matter was heard before the Deputy Commissioner on April 26, 1934. At this hearing the insurance company raised the question of jurisdiction on the ground that plaintiff had not pursued his third-party remedy to final judgment. The deputy commissioner continued the hearing without a definite ruling, intimating however his approval of the position taken by the insurance company. Plaintiff then filed a motion in the railway company suit to proceed further “without payment of accrued or future costs” for the purpose of having this cause “determined as a matter of record.” This motion was denied by the court.
*234Plaintiff, instead of proceeding to a new trial and securing a final judgment, petitioned' the court to proceed in forma pauperis. His petition was denied, and he took no further steps to secure his right to- thus proceed to a new trial. The' denial of the right to proceed in forma pauperis did not amount to a final judgment- either in that matter, or in the suit against the railway-company. The court doubtless denied the petition on the theory that, in view of the decision in the appellate court, further pror ceedings against the railway company would be fruitless; but notwithstanding the apparent obstacle to success, plaintiff, if he had insisted on his rights, was entitled to a new trial.
Abandoning this step to procure a final judgment,- plaintiff, on March 1, 1934, renewed his application for compensation. Hearings were had, and on June 27, 1934, defendant denied plaintiff compensation on the ground “that the claimant, having filed his election to pursue his remedy against the third party, and having failed to pursue his remedy to completion, has prejudiced the rights of the employer herein by allowing the statutory limit to run against any rights the employer might have had, arid the claimant therefore is not entitled to compensation within the meaning of the act.”
On May 9, 1934, the plaintiff by prajcipe duly filed, discontinued his action against the Washington Railway & Electric Company and filed his bill in equity for a review of the award and for a mandatory injunction against defendant commissioner; Whereupon defendant Hoáge moved to dismiss the bill on the ground that his compensation order of June 27, 1934, coriiplained of in the bill, is in- accordance with law. The intervener joined in the motion of defendant to dismiss. The court, on hearing, entered a decree dismissing plaintiff’s bill, and from the- decree this appeal was taken. •
Plaintiff elected to proceed under section 33 of the Longshoremen’s and Plarbor Workers’ -Compensation Act, 44 Stat. 1440, 33 USCA § 933, which provides as follows:
“Section 33. (a) If on account of a disability or death for which compensation is payable under this act [chapter] the person entitled to such compensation determines that some person other than the employer is liable in damages, he may elect, by giving notice to the deputy commissioner in such manner as the commission may provide, to receive such compensation or to recover damages against such third person. * * *
“(f) If the person entitled to compensation or the representative elects to recover damages against such third person and notifies the commission of his election and institutes proceedings within the period prescribed in section 13 [section 913 of this chapter], the employer shall be required to pay as compensation under this act [chapter] a sum equal to the excess of the amount which the commission determines is payable on account of such injury or death over the amount recovered against such third person.
“(g) If a compromise with such third person is made by the person entitled to compensation or such representative of an amount less than the compensation to which such person or representative would be entitled to under this act [chapter], the employer shall be liable for compensation as determined in subdivision (e) only if such compromise is made with his written approval.”
The statute of limitations having run in favor of the employer and the insurance carrier, plaintiff was required to pursue his action against the railway company to a final judgment. Not having done this, plaintiff is in no position now to seek compensation through defendant commissioner. ’ Counsel for defendant relies chiefly upon decisions of the New York courts where the statute is substantially similar to the federal statute here involved. These courts take the extreme position that plaintiff having elected to pursue the third party, could not under any circumstances discontinue that case before final judgment, without the consent of the employer and carrier, and thereafter claim compensation. Kavanaugh v. Belden, 231 App. Div. 412, 247 N. Y. S. 714; Breital v. Hinderstein et al., 236 App. Div. 203, 258 N. Y. S. 237; Cole v. Gold Metal Cone Co., 236 App. Div. 749, 258 N. Y. S. 239.
With this construction of the statute we are not in agreement. The New York statute contains the provision that an injured employee “shall, before any suit or any award under this chapter, elect either to take compensation under this chapter or to pursue remedy against such other” third person. This provision, compelling election, is not contained in the Longshoremen’s Act. It furnishes, however, a re*235mote basis for the extreme holding of the New York courts in interpreting their act.
This distinction between the federal statute and the New York statute is clearly stated by the Circuit Court of Appeals of the Second Circuit in the recent case of American Lumbermen’s Mutual Casualty Co. v. Lowe, Deputy Commissioner, et al., 70 F.(2d) 616, 618. In that case the plaintiff elected to bring an action against the third party, but later, and before the statute of limitations had run, discontinued her suit and proceeded for compensation before the Commissioner. Her right to proceed before the Commissioner, not having pursued her case against the third party to final judgment, was denied by the District Court on the authority of the New York decisions. 5 F. Supp. 447. The Court of Appeals, however, held, and we think properly, that so long as the rights of the employer or carrier had not been prejudiced by the running of the statute of limitations, the act of discontinuance would not prevent the plaintiff from pursuing her remedy before the Commissioner.
On this point the court said: “It is evident that either an acceptance of compensation under (b) [33 USCA § 933 (b)] or a compromise with a third person and without written consent of the employer under (g) [33 USCA § 933 (g)] constitutes a final election that will bar other remedies. But there is nothing in (a) [33 USCA § 933 (a)] suggesting that bringing an action against the third person amounts to a final election. Nor, in the absence oT such delay as will prevent the employer or its carrier from effectively availing themselves of their rights against the third person by way of subrogation, would there seem to be adequate reason for depriving a person entitled to compensation of the right to discontinue her action and seek compensation under the statute. Such a locus poenitentim is ordinarily available, where separate remedies against different persons exist.”
The present case, however, is in conflict with the exception laid down in the Lowe Case, since the running of the statute of limitations intervened, while the suit for damages was pending against the railway company. The election of plaintiff to bring suit against the third party, and his failure to pursue that remedy to final judgment, with the intervention of limitations, bars his right to recover compensation under the statute.
The decree is affirmed.
Longshoremen’s and Harbor Workers’ Compensation Aet (Act of March 4, 1927, 44 Stat. 1424, 33 USCA §g 901-950), as made applicable to the District by the Act of May 17,1928 (45 Stat. 600, D. C. Code 1929, T. 19, §§ 11, 12, 33 USCA § 901 note).