
    In the Matter of the Claim of William P. McKee against Charles White et al., Respondents. The State Industrial Board, Appellant.
    
      Workmen’s compensation — master and servant — estoppel — election by injured workman to sue third party — dismissal of action for failure to prosecute — estopped from asserting claim for compensation.
    
    
      Matter of McKee v. White, 218 App. Div. 300, affirmed.
    (Argued February 21, 1927;
    decided March 4, 1927.)
    Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered November 30, 1926, reversing an award of the State Industrial Board, made under the Workmen’s Compensation Law, and dismissing the claim. Claimant on September 18, 1922, sustained injuries resulting in partial loss of use of his right hand. He was then nineteen years of age. He elected to sue a third party, which action was dismissed May 14, 1925, for failure to prosecute, whereupon claimant pressed his claim before the Industrial Board. The Appellate Division held that he was estopped from asserting claim for compensation.
    
      Albert Ottinger, Attorney-General (E. C. Aiken of counsel), for appellant.
    
      William B. Davis and E. C. Sherwood for respondents.
   Order affirmed, with costs against State Industrial Board; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Andrews, Lehman and O’Brien, JJ. Not sitting: Kellogg, J.  