
    Thomas Lang et al., Appellants, v. Brooklyn City Railroad Company, Defendant, and The Brooklyn Union Gas Company, Respondent.
    
      Parties — trusts — assignment by workman to insurance carrier of his entire cause of action against third parties for injuries from their negligence — declaration of trust by insurance carrier as to any surplus over amount it paid workman — latter may not be joined as coplainliff in action against third parties.
    
    
      Lang v. Brooklyn City B. B. Co., 217 App. Div. 501, affirmed.
    (Argued January 10, 1928;
    decided January 20, 1928.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered July 8, 1926, which affirmed an order of Special Term granting a motion by defendant-respondent to strike from the complaint the name of Thomas Lang as a party plaintiff. The following question was certified: “ Where a workman has been paid a lump sum as compensation by an insurance carrier and has assigned to the carrier his entire cause of action against third parties for damages by reason of injuries caused by the negligence of said third parties, pursuant to section 29 of the Workmen’s Compensation Law, if the insurance carrier thereafter irrevocably declares itself a trustee for the benefit of the workman of any surplus that may be recovered, by way of judgment or settlement, in any action or otherwise, as damages for said injuries from the negligent third parties, over and above what the carrier has paid to the workman as compensation, does such declaration of trust constitute the workman a party in interest so that he may be properly joined with the insurance carrier as a coplaintiff in an action against the negligent third parties?”
    
      Joseph Lorenz and John F. X. Finn for appellants.
    
      Maximilian Moss and Jackson A. Dykman for respondent.
   Order affirmed, with costs, question certified answered in the negative; no opinion.

Concur: Crane, Andrews and O’Brien, JJ.; Cardozo, Ch. J., Pound, Lehman and Kellogg, JJ., concur upon the ground that the declaration of trust pleaded in the complaint does not create an interest in favor of the cestuis que trust in advance of recovery or collection by the trustee.  