
    Before State Workmen’s Compensation Commission, Respondent. In the Matter of the Claim of Elizabeth K. Crockett, Claimant, Respondent, for Compensation to Herself for the Death of Davie Mayo Crockett, under the Workmen’s Compensation Law, v. International Railway Company, Employer, Appellant, and State Insurance Fund. Insurer.
    Third Department,
    November 10, 1915.
    Workmen’s Compensation Law — statute construed—employer’s right of appeal — insurance in State fund.
    The Workmen’s Compensation Law makes a distinction as respects the right of appeal between those who insure in the State fund and those who insure with other insurance carriers.
    Employers who insure in the State fund are given absolute immunity under section 53, which is not the case where they take out other insurance.
    "Hence, where an employer has insured in the State fund, his interest in the award is so remote that the Legislature has not authorized an appeal by him where he is not otherwise aggrieved.
    Woodward, J., dissented.
    Appeal by International Railway Company from an award of the Workmen’s Compensation Commission, entered in the office of said Commission on the 10th day of March, 1915.
    
      Norton, Penney, Spring & Moore [R. C. Vaughan of counsel], for the appellant.
    
      Egburt E. Woodbury, Attorney-General [E. C. Aiken, Deputy Attorney-General, of counsel], for. the respondent Workmen’s Compensation Commission.
    
      Jeremiah F. Connor, counsel for the Workmen’s Compensation Commission.
   Smith, P. J.;

The employer was insured in the State insurance fund. The first point raised is that it has no right to appeal. By section S3 of the Compensation Law it is provided: “An employer securing the payment of compensation by contributing premiums to the State fund shall thereby become relieved from all liability for personal injuries or death sustained by his employees, and the persons entitled to compensation under this chapter shall have recourse therefor only to the State fund and not to the employer. An employer shall not otherwise be relieved from the liability for compensation prescribed by this chapter except by the payment thereof by himself or his insurance carrier.” By section 23 of the act it is provided that an award or decision shall be final and conclusive “ as against the State fund, or between the parties, unless within thirty days after a copy of such award or decision has been sent to the parties, an appeal be taken to the Appellate Division of the Supreme Court of the Third Department. The Commission may also, in its discretion, where the claim for compensation was not made against the State fund, on the application of either party, certify to such Appellate Division of the Supreme Court, questions of law involved in its decision.” At least as to the certified questions a distinction seems to be made between those who insure in the State fund, and those who insure with other insurance carriers. That discretion is probably based upon section 53, above quoted, which gives absolute immunity to the employer after insurance in the State fund, while such immunity is not given after insurance with any other carrier. It is true that the employer has a remote interest even though insured in the State fund, to the end that the risk which he claims not to be within the act may be so decided as affecting any subsequent premiums which he must pay. That interest, however, is too remote an interest to authorize his appeal in a matter where he is not otherwise aggrieved.

Further, the history of this legislation furnishes important light upon its proper interpretation. In the regular session of 1913 two compensation acts were before the Legislature. One was the Murtaugh-Jackson Act, which provided for a system of State insurance, and all employers were required to contribute thereto. This was the only method established for giving security for the payment of compensation. In that act it was provided that the decisions of the Commission were final, except where a claim for compensation was rejected. In the Foley-Walker bill security for compensation was given by providing carriers. There was no system of State insurance, and an appeal was allowed to any party interested. The act as it was passed seems to have been a compromise between these two proposed laws, giving the right of appeal where the insurance is with a private carrier — as in the Foley-Walker bill — and withholding that right where the insurance is by the State insurance fund, as provided in the Murtaugh-Jackson bill.

I recommend, therefore, that the appeal be dismissed.

All concurred, except Woodward, J., dissenting.

Appeal dismissed  