Claim of Russell v. 231 Lexington Avenue Corp.

The effect of this decision seems to me to be contrary to the intent and spirit of the Workmen's Compensation Law. An employee may not waive his right to compensation. (Workmen's Compensation Law, § 32.) Compensation or benefits may not be released or commuted except as provided by that law. *Page 398 (Workmen's Compensation Law, § 33.) We are merely pointing out a method by which those provisions may be circumvented. The record shows that the claimants did not know whether 231 Lexington Avenue Corporation was the employer of the deceased or not. They acted on the best information procurable. But 231 Lexington Avenue Corporation knew its own status and took advantage of that knowledge by a settlement which netted a dependent mother less than the benefits to which she was entitled. To me the award made by the Industrial Board and affirmed by the Appellate Division seems logical enough under the circumstances. Since 231 Lexington Avenue Corporation was in truth an employer and not a third party, the mother was awarded the benefits to which she was entitled and the employer was permitted to offset her share of what it had in reality voluntarily paid. It made its own bargain in the light of complete knowledge of the facts and may not be heard to complain.

CRANE, Ch. J., O'BRIEN, HUBBS and FINCH, JJ., concur with LEHMAN, J.; CROUCH, J., dissents in opinion, in which LOUGHRAN, J., concurs.

Order reversed, etc. *Page 399