
    CROCKETT v. STATE INS. FUND.
    (No. 241/156.)
    (Supreme Court, Appellate Division, Third. Department.
    November 10, 1915.)
    Master and Servant <§=^>250%, New, vol. 16 ICey-No. Series—Workmen’s Compensation Act—Award—Employer’s Right op Appeal.
    Workmen’s Compensation Act (Consol. Laws, c. 67) § 53, provides that 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 for death sustained by his employes, and the person entitled to compensation under the chapter shall have recourse therefor only to the state fund, and not to the employer. Section 23 provides that an award or decision shall be conclusive as against the state fund or between the parties, unless within 30 days after copy of such decision has been sent to the parties an appeal be taken to the Appellate Division of the Supreme Court of the Third Department, and that 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 the Appellate Division of the Supreme Court questions of law Involved. An employer insured under the act by contributing to the state fund appealed from an award of the Commission for death of an employs. Held, that the act gives a right of appeal only to an employer privately insured, and that the appeal must be dismissed; the insured employer having absolute immunity from liability after insurance in the state fund, its interest through the fact that the risk, which it claimed not to be within the act, may be otherwise decided, thus atfecting subsequent premiums to be paid, being too remote to authorize the appeal.
    
      igr^For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes
    
      Woodward, J., dissenting.
    Appeal from Workmen’s Compensation Commission.
    Proceeding under the Workmen’s Compensation Law by Elizabeth' K. Crockett, to obtain compensation for the death of her husband while in the employ of the International Railway Company, against the State Insurance Fund, insurer. Compensation was awarded, and the employer appeals. Appeal dismissed.
    Argued before SMITH, P. J., and KELLOGG, LYON, HOWARD, and WOODWARD, JJ.
    Norton, Penney, Spring & Moore, of Buffalo (R. C. Vaughan, of Buffalo, of counsel), for appellant.
    Egburt E. Woodbury, A tty. Gen. (Jeremiah F. Connor, of New York City, of counsel), for respondent.
   SMITH, P. J.

The employer was insured in the state insurance fund. The first point raised is that he has no- right to- appeal. By section 53 of the Compensation Act 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 Ms employes, 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 Ms 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 distinction 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 MurtaughJackson act, which-provided for a system of state insurance, and all employes 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 tire 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-Jaclcson bill.

I recommend, therefore, that the appeal be dismissed.

KELLOGG, LYON, and HOWARD, JJ., concur. WOODWARD, J., dissents.  