
    Charles Schubert, Appellant, v. Louis Finkelstein et al., Individually and as Copartners under the Firm Name of L. Finklestein & Sons et al., Respondents.
    
      Negligence — workmen’s compensation — election — action to recover for personal injuries — defense that plaintiff had elected, to take compensation under Workmen’s Compensation Law.
    
    
      Schubert v. Finkelstein, 216 App. Div. 702, affirmed.
    (Argued January 18, 1927;
    decided February 23, 1927.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered October 22, 1926, unanimously affirming a judgment in favor of defendants entered upon a dismissal of the complaint by the court at a Trial Term in an action to recover for personal injuries alleged tc have been sustained through the negligence of defendants. The defense was that plaintiff had elected to take compensation under the Workmen’s Compensation Law. The question was whether an employee injured by the negligence of third parties who has received an award of compensation from the Industrial Commission and has been paid the award by the insurance carrier, may maintain an action against such third parties, where, before the commencement of the action and while the case before the Commission is continued and before final award, the award made has been rescinded by the Commission upon his application and upon the consent of the carrier, and he has paid back to the carrier the money received by him.
    
      Bertrand L. Pettigrew and James F. Brady for appellant.
    
      Benjamin C. Loder and John PL. Scully for L. Finkelstein & Sons, respondents.
    
      George F. Hickey and William Butler for Samuel Couch & Sons, respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Pound, Andrews, Lehman and Kellogg, JJ. Dissenting: Cardozo, Ch. J., and Crane, J.  