
    In the Matter of the Claim of Clarissa Meachem, Appellant, v. New York Central Railroad Company, Respondent. Workmen’s Compensation Board, Respondent.
    Argued April 27, 1960;
    decided October 21, 1960.
    
      John E. Knauf and David Wanger for appellant.
    I. The action brought by claimant-appellant as administratrix against Mohawk Containers, Inc., and Donald Esford was not a third-party action within the meaning of section 29 of the Workmen’s Compensation Law. (O’Brien v. Lodi, 246 N. Y. 46; Matter of Roth v. Harlem Funeral Car Co., 243 App. Div. 459, 268 N. Y. 661; Matter of Commissioner of Taxation & Finance [Prezioso] v. C. L. P. Concrete Corp., 281 App. Div. 1050; MaMer of Chiap
      
      pano v. City of New York, 281 App. Div. 996; Commissioners of State Ins. Fund v. H. L. & F. McBride, Inc., 195 Misc. 362; Phoenix Ind. Co. v. Staten Is. R. T. Ry. Co., 251 N. Y. 127; Matter of Parchefsky v. Kroll Bros., 267 N. Y. 410.) II. Jurisdiction of the death claim was properly taken by the Workmen’s Compensation Board. (Matter of Baird v. New York Cent. R. R. Co., 299 N. Y. 213; Matter of Losch v. Curtiss-Wright Corp., 275 App. Div. 1, 300 N. Y. 682; Matter of Ahern v. South Buffalo Ry. Co., 303 N. Y. 545, 344 U. S. 367; Matter of Lanning v. Erie R. R. Co., 265 App. Div. 576, 291 N. Y. 688.)
    
      David S. Williams for New York Central Railroad Company, respondent.
    I. Claimant is barred from an award by provisions of the Workmen’s Compensation Law relating* to settlement of third-party actions. (O’Brien v. Lodi, 246 N. Y. 46; Matter of Roth v. Harlem Funeral Car Co., 243 App. Div. 459, 268 N. Y. 661; Matter of Cresci v. Krasilousky Trucking Co., 5 A D 2d 569; Matter of Schwabacher v. International Salt Co., 272 App. Div. 173, 298 N. Y. 726; Matter of Parchefsky v. Kroll, 267 N. Y. 410.) II. The Workmen’s Compensation Board had no authority to make an award. (Matter of Baird v. New York Cent. R. R. Co., 299 N. Y. 213; Dusek v. Pennsylvania R. Co., 68 F. 2d 131; Flynn v. New York, N. H. & H. R. Co., 283 U. S. 53; Baltimore & O. S. W. R. Co. v. Carroll, 280 U. S. 491; Reading Co. v. Koons, 271 U. S. 58; Ahern v. South Buffalo Ry. Co., 303 N. Y. 545, 344 U. S. 367.)
    No appearance for Workmen’s Compensation Board, respondent.
   Chief Judge Desmond.

In this workmen’s compensation proceeding the board awarded death benefits to claimant widow and her child, on findings that the death of the employee John D. Meachem on May 9,1948 was the result of accidental injuries which were sustained by him on November 7, 1945 in the course of his employment by respondent railroad company. The Appellate Division, however, reversed the award and dismissed the claim on the ground that a so-called third-party action was settled without the consent of the self-insured employer.” Another alleged ground for reversal (lack of jurisdiction in the Workmen’s Compensation Board because of interstate commerce employment of deceased) was discussed in the Appellate Division opinion but, apparently, not relied on as a basis for decision. That second ground will be taken up at a later point in this opinion.

The Appellate Division held that section 29 of the Workmen’s Compensation Law barred a death award to claimant because as administratrix of her husband’s estate she had without the self-insured employer’s consent settled a “ third-party ” wrongful death action against the owner and driver of an automobile which had injured her husband on February 24, 1948, 27 months after his industrial accident. But to us it is clear beyond any doubt that the action so settled was not such a ‘ third-party ’ ’ suit as is dealt with in section 29 since it had nothing whatever to do, in time or place or otherwise, with the industrial accident of November 7, 1945, which is the basis for the workmen’s compensation death award here in litigation. Neither the language of section 29 nor any interpretation of it during the nearly 50 years it has been on the books authorizes the treatment of appellant’s wrongful death action as a ‘ third-party suit” within the statute. There is absolutely no authority anywhere for the decision below.

These undisputed facts will explain the case:

November 7,1945-—• decedent John D. Meachem in the course of his employment by self-insured respondent New York Central Railroad Company in its West Albany shops received injuries which disabled him and caused his death on May 9, 1948.
December 21, 1945 — Meachem filed his claim for compensation benefits which was controverted on the sole ground of alleged lack of causal relation. An award was made and the railroad company made compensation payments thereunder for total disability until Meachem’s death on May 9, 1948.
February 24, 1948 — Meachem was injured in an automobile accident which, as found by the board, ‘ was not interlinked with the industrial accident of November 7, 1945, and was not the cause” of Meachem’s death. Mrs. Meachem as administratrix brought a wrongful death action against the owner and driver of the car.
June 11, 1948 — the widow on her own behalf and for her infant son filed with the Workmen’s Compensation Board a claim for death benefits.
February 23,1950 — respondent railroad company for the first time announced to the Workmen’s Compensation Board its intention to controvert the claim on the ground that the board was without jurisdiction since “both employee and employer were engaged in Interstate Transportation on the date of this alleged injury and death.” At no prior time during all the earlier compensation hearings on the disability claim and the death claim had any such matter been mentioned.
December 21,1949 — the widow as administratrix was authorized by the Surrogate’s Court of Albany County to settle for $12,000 her suit against the owner and driver of the automobile which had injured Meachem on February 24, 1948. Respondent railroad company did not consent to the settlement of this suit and now asserts that it was a “third-party” settlement and so, having been made without its consent, barred (see § 29, subd. 5) any further award of compensation benefits.
July 5,1957—the Workmen’s Compensation Board made the death award which is now in litigation, finding that the industrial accident injuries of 1945 and not the automobile accident injuries of 1948 were the cause of death.

We can find no basis for holding that the 1949 settlement of appellant’s lawsuit had any effect on the workmen’s compensation rights or that it was in any way covered by or regulated by anything in section 29. From its enactment in 1914, the Workmen’s Compensation Act has dealt with the situation where an industrial accident occurring during employment is caused ‘' by the negligence or wrong of another not in the same employ ’ ’. Never until now has this statute been extended so as to deal Avith subsequent accidents unrelated to the industrial casualty. From the early days of the statute a compensation insurer or self-insured employer was recognized as having rights by subrogation as against an outsider who had caused the very industrial accident for which the insurer or self-insured employer was obligated to pay compensation. As this court noted in O’Brien v. Lodi (246 N. Y. 46, 49): “It may and frequently does happen that the employee in the course of his employment is injured * * * by the negligence of a third party.” The Appellate Division itself soon after the enactment of the act in 1914 described section 29 as covering a case “Where an employee is injured by the act of a third party, in the course of his employment ’ ’ (Lester v. Otis Elevator Co., 169 App. Div. 613, 617, 618). The injured employee (or in case of death, his estate) was not deprived of his common-law suit against that tort-feasor and his “ third-party suit ” was not dependent on or regulated by the Workmen’s Compensation Act. The Workmen’s Compensation Act regulates the relation, not between the workman and the world at large, but between workman and employer ” (Matter of Zirpola v. T. & E. Casselman, Inc., 237 N. Y. 367, 373; see Travelers Ins. Co. v. Padula Co., 224 N. Y. 397). The injured employee or his estate retains all his common-law rights of action against everyone except his employer. But his employer’s (or employer’s insurer’s) subrogated rights are protected as against the true culprit who in fact caused or contributed to the in-course-of-employment accident for which the employer (or insurer) must pay workmen’s compensation. Section 29 implements the ‘ ‘ quest * * * for the actual wrongdoer ” (2 Larson, Workmen’s Compensation Law, § 71.10). The sole purpose of present subdivision 5 of section 29 is to prevent imprudent settlements of such suits by the employee or his estate to-the prejudice of the employer’s (or carrier’s) subrogated rights. It is impossible to apply this concept to a case like the present one where the employer could •not conceivably be subrogated to any rights as against the operator of the car involved in the totally unrelated automobile collision. The key word is “ employee ” in the very first line of section 29. It is the injury to or killing by a third person of an “ employee ” — that is, one at work in his employment— which brings section 29 into play. If the third party’s tort is not committed while the worker is at work and so entitled to compensation, section 29 has no relevance or effect.

Some argument is made that section 29 is applicable because the industrial hurt and the automobile crash were both causes of the same ‘ ‘ injury ’ ’, that is, death. Death is not an " injury ’ ’ but a result of injury. Meachem suffered two injuries remote from each other as to time and place. Indeed — although it is unnecessary to our argument—the board finding (which we cannot review because founded on substantial proof—Workmen’s Compensation Law, § 20) is that Meachem’s death was caused by the industrial episode alone and not by the injuries suffered in the automobile collision.

No one suggests any precedent for the Appellate Division’s decision except the single and quite inapposite case of Matter of Parchefsky v. Kroll Bros. (267 N. Y. 410). But Parchefsky simply applies to workmen’s compensation law the old rule (see Milks v. McIver, 264 N. Y. 267) that one who wrongfully injures another is liable for the malpractice of the physician who treats the injury since it was all part of an unbroken sequence. How that can be a basis for decision here we cannot understand. We repeat—there is no precedent for holding that this wrongful death settlement was of an action of the kind contemplated and covered by section 29.

The opinion below says that the result of an award of compensation death benefits here would be “an untoward one of double recovery ’ ’. That seems incorrect both in fact and law. The wrongful death suit settlement and the approval thereof by the Surrogate expressly took into account the fact that there were or might be “claims or causes of action” against the railroad company. The compensation death award is at the total rate (for both widow and child) of only $24.23 per week. The death suit settlement was for $12,000. Surely these figures do not justify the conclusion that this was an unconscionable ‘ double recovery ’ ’. On this record the only showing of a “ double recovery ” was as to the minor item of funeral expenses since the settlement included $750 for that item and the Workmen’s Compensation Board award $200 therefor (Workmen’s Compensation Law, § 16, subd. 1).

Even if this were a “ double recovery ”, that fact would not condemn it in the eyes of the law. There is nothing in the Workmen’s Compensation Act forbidding collection of additional amounts from other sources. Indeed, the act itself provides for such additions since even in a true “ third-party ” situation the injured employee or his estate may get part (two thirds) of a third-party settlement in addition to his full workmen’s compensation. Failure to show that there was an actual “ doubling ” of full indemnity and failure to cite any legal bar to the award of full workmen’s compensation puts “ double recovery ’ ’ out of this case.

We turn now to the jurisdictional objection to the death award — that is, the assertion that, since Meachem was working in interstate commerce when injured in 1945, the Federal Employers ’ Liability Act alone governed and the New York State Workmen’s Compensation Board had no jurisdiction. The board, however, made a finding of fact that the employer ‘ ‘ has waived and is estopped from questioning the jurisdiction of the Workmen’s Compensation Board.” The finding of estoppel may or may not have been justified on this record but there was substantial proof of a waiver and so the finding of waiver may not be disturbed by the courts (Workmen’s Compensation Law, § 20). Section 113 of the Workmen’s Compensation Act validly (see Matter of Ahern v. South Buffalo Ry. Co., 303 N. Y. 545, affd. 344 U. S. 367) allows awards in such employments if the claimant and employer ‘' waive ’ ’ their interstate commerce rights and remedies. Waiver means the intentional relinquishment of a known right. There is of course no difficulty about finding a waiver by Meachem. As to his employer, it never expressed any denial of the Workmen’s Compensation Board’s jurisdiction until February 23, 1950, more than four years after Meachem’s industrial accident, four years after workmen’s compensation was first awarded and paid, and 21 months after Meachem’s death. There is some suggestion that it- was not until the decision in Matter of Baird v. New York Cent. R. R. Co. (299 N. Y. 213 [1949]) that this employer was on notice that sole coverage of Meachem’s injury was under the Federal Employers’ Liability Act. Of course, the New York Central Railroad Company knew the work conditions of its employees and, especially because of innumerable prior litigations, it understood the jurisdictional rules. In fact, in the Baird case itself this employer raised the Federal question on July 17,1946, but for reasons of its own did not so controvert Meachem’s claim until 1950, long after his death.

It can be argued that the facts here do not meet the requirements for waiver set out in this court’s decision in 1926 in Fitzgerald v. Harbor Lighterage Co. (244 N. Y. 132). But the Fitzgerald case’s definition of waiver, if definition it was intended to be, was broadened (and liberalized) by the Matter of Ahern v. South Buffalo Ry. Co. opinions (303 N. Y. 545, affd. 344 U. S. 367, supra) filed many years later. We hold that the word ‘ ‘ waive ’ ’ in this statute should be given its ordinary meaning, not a narrow and restricted one. So tested, the proof here was ample to support the finding of waiver.

It is argued, though, that the Ahern decisions (supra) were grounded not on waiver but on estoppel—that is, that Ahern’s employer was not held to have waived but to have been estopped from denying that he had waived. No basis appears for such a construction of either this court’s opinion (303 N. Y. 545) or that of the United States Supreme Court (344 U. S. 367) in Ahern. Both courts agreed that there was nothing in Federal or State law to prevent the parties from agreeing “ ' to forego one set of remedies and abide by another ’ ’ ’ (language quoted in our Ahern opinion from our Fitzgerald opinion, supra). Both courts agreed that this might lawfully be done by submitting the controversy to the New York State Workmen’s Compensation Board. The two courts, after canvassing the facts, agreed in Ahern that there had been such a voluntary consensual submission. Both courts in Ahern stressed facts which were there present and are here present: representation of the employer by experienced counsel; utilization by the parties of the board’s machinery at a series of hearings resulting in a series of awards; and payment and acceptance of those awards. Both courts held that Ahern and his employer had thus efficiently invoked the “permissive statute” (Workmen’s Compensation Law, § 113). There was, of course, another factual element available in Ahern as additional, but not essential, proof of waiver. In Ahern the employer had not raised the question of Federal jurisdiction until after the workman’s time to bring a Federal Employers’ Liability Act suit had passed. But there was no intimation by either court that this time element was an essential basis for a valid finding of waiver by Ahern’s employer. Ahern and his employer waived. Meachem and his employer waived in exactly the same way. That there was in Ahern’s case the added feature of estoppel is a factual difference, but not such a distinction as to produce a different result.

The order of the Appellate Division should be reversed, with costs in this court and in the Appellate Division against respondent employer, and the award of the Workmen’s Compensation Board reinstated.

Froessel, J. (dissenting).

We dissent and vote to affirm. We cannot agree with the majority opinion of the court both as to the jurisdictional and the section 29 issues. In their disposition of the jurisdictional question, they flatly overrule Fitzgerald v. Harbor Lighterage Co. (244 N. Y. 132), thereby destroying the salient policy which it was designed to promote, at the same time raising a serious constitutional question as to the conflict between section 113 of the Workmen’s Compensation Law as here applied and the Federal Employers’ Liability Act. With regard to the section 29 issue, principles of law well settled by the decisions of our court have been ignored.

It will be helpful to set forth a rather full statement of the facts before consideration of the applicable law. The deceased employee, John D. Meachem, worked in the locomotive department of respondent New York Central Railroad at its. West Albany shops as a machinist and repairman. On November 7, 1945, while operating an electric switch in the regular course of his employment, he suffered severe shocks and burns. A duodenal ulcer resulted, and he became totally disabled. Meachem filed a claim for compensation benefits on December 21,1945. Respondent controverted the claim on the ground that ‘' causal relation between the condition * * * complained of and any accidental injury ” was lacking; and reserved “ the right to controvert for such other reasons as may later appear ”. Respondent railroad subsequently paid compensation for total disability in accordance with the ensuing award.

On February 24, 1948 Meachem was injured in an automobile ■accident. According to the board’s findings, he died on May 9, 1948 “of an internal hemorrhage due to perforated duodenal ulcer”. (Emphasis supplied.) The attending physician’s report states in greater detail: “ Shock ruptured gastric ulcer emergency operation April 30,1948 and secondary anemia, with secondary hemorrhage massive internal May 7th, patient expired May 9,1948 following second massive hemorrhage.”

On June 11, 1948 appellant, as widow, made application for death benefits to the Workmen’s Compensation Board. Respondent contested the claim on the ground that the automobile accident was the sole cause of death, and hence there did not exist a causal relationship between the industrial accident and the death. Respondent again reserved the right “ to controvert for such other reasons as may later appear Then, on February 23,1950 — several months after the decision of this court in Matter of Baird v. New York Cent. R. R. Co. (299 N. Y. 213, decided May 26, 1949) — respondent filed another notice, in which it announced its intention to controvert on the additional ground that the board was without jurisdiction since ‘' both employee and employer were engaged in Interstate Transportation on the date of this alleged injury and death”.

Prior to any determination by the board of the claim for death benefits, appellant, as administratrix of her husband’s estate, brought suit against the owner and operator of the automobile involved in the collision of February 24, 1948. She petitioned the Surrogate’s Court of Albany County for leave to compromise that action in the amount of $12,000. Her petitioning papers and the order of the Surrogate issued in connection therewith reveal that the action against the owner and operator of the automobile was to recover damages for " wrongful death ”, and also included a claim for “ conscious pain and suffering”. Those papers also show that as a result of the automobile collision appellant’s husband “ sustained severe and permanent injuries ” and “ that said injuries subsequently precipitated and contributed to his death ” (emphasis supplied). The Surrogate granted permission to settle the action on December 21,1949. In a subsequent order, the Surrogate apportioned the proceeds of the settlement among the decedent’s “wife and next of kin ” in proportion to “ the pecuniary injuries ” which they “suffered”. (Decedent Estate Law, §§ 132-133.) Respondent did not consent to the settlement of the action.

After such settlement, the Referee in this case held, on the authority of Matter of Baird v. New York Cent. R. R. Co. (299 N. Y. 213, supra), that the board lacked jurisdiction over the subject matter of the claim for death benefits — claimant’s attorney acknowledging that the Referee “ would have to be governed ” by the Baird case. This determination was reversed by the board, which held that respondent had “ waived and is estopped from raising the question of the jurisdiction of the Workmen’s Compensation Board, by its conduct in paying compensation pursuant to the New York law and in failing to raise the question of jurisdiction before the loss of the claimant’s right of action under the Federal Employers Liability Act.” (See Finding 7; emphasis supplied.) The italicized language was directly contrary to the evidence.

Notwithstanding its findings that decedent “was totally disabled due to duodenal ulcer ” as a result of the 1945 industrial accident, and died “ due to perforated ulcer ” following the automobile accident, the board determined that ' ‘ The automobile accident was not interlinked with the industrial accident of November 7, 1945, and was not the cause of claimant’s death” (emphasis supplied). It was accordingly held that the compromise of the wrongful death action arising out of the automobile collision did not constitute a ‘' third-party settlement ” within the meaning of section 29 of the Workmen’s Compensation Law. After submission of a report by an impartial medical specialist, and a hearing de novo before a Referee, the board also held that causal relationship between the industrial accident and death existed.

The Appellate Division, in unanimously reversing the board, held that respondent was not estopped from raising the defense of lack of jurisdiction over the subject matter; and that the action for wrongful death came within the purview of section 29 of the Workmen’s Compensation Law.

Treating first with the jurisdiction question here presented, appellant’s husband, as previously noted, was engaged as machinist and repairman at respondent’s West Albany shops when he was injured in the course of his employment in November, 1945. In Matter of Baird v. New York Gent. R. R. Co. {supra) we held that workmen similarly engaged at respondent’s West Albany shops must seek redress for their industrial injuries under the Federal Employers’ Liability Act. Our Workmen’s Compensation Board was consequently ousted of its jurisdiction to hear and determine claims arising out of such accidents. However, section 113 of our Workmen’s Compensation Law-—-the constitutionality of which was upheld as applied in Matter of Ahern v. South Buffalo Ry. Co. (303 N. Y. 545, affd. 344 U. S. 367) —provides that “ the employer and the insurance carrier” may “waive their admiralty or interstate commerce rights and remedies

In the Fitzgerald case (244 N. Y. 132, supra) we dealt with a situation parallel to that at bar, also involving section 113 and the question of waiver thereunder. A workman had there filed a claim with the Industrial Commissioner and was awarded compensation for his disability. Payments were made by the employer which the employee accepted. Over a year after his original claim was filed, the employee chose to pursue his Federal rights in an action for injuries under the maritime law. We construed the waiver provision of section 113, and held that such conduct did not constitute a waiver of Federal rights. The waiver contemplated by section 113, wrote Judge Cabdozo (244 N. Y., at p. 137), is one which “ imports ” in the setting of the context ” a ‘ ‘ concurrent evidence of intention having the force of an agreement to forego one set of remedies and abide by another ’ ’ . That ‘ ‘ intention ’’ to forego Federal remedies must be “ announced ” by “ all who must participate ”—namely, the claimant, employer, and insurance carrier—before the statute will be operative to confer jurisdiction on the board (id., pp. 136-137).

The salutary policy reasons which impelled the formulation of these rigid standards for waiver under section 113 are apparent : By maintaining such standards, an injured workman who may have filed a claim and accepted benefits under our Workmen’s Compensation Law would not be precluded thereby from instituting action under the Federal Employers’ Liability Act (FELA)—or any other relevant Federal act, as the case may be (e.g., The Jones Act, U. S. Code, tit. 46, § 688) —and recovering a verdict over and beyond the limited schedule of allowances afforded him under our Workmen’s Compensation Law.

As a direct result of the majority’s overruling of the Fitzgerald case, injured workmen who may henceforth mistakenly file claims for compensation under our Workmen’s Compensation Law and accept benefits before realizing their rights were governed by the FELA would be seriously prejudiced — deprived of a possible substantially higher recovery. This we cannot sanction. In our view, the standards of waiver propounded in Fitzgerald, and the policy effectuated thereby, should be preserved. Thus we would hold in the instant case that in the “ setting of the context ” here presented, neither the claimant nor the self-insured employer ‘ ‘ announced ” an “ intention ’ ’ to forego Federal remedies, thereby giving rise to the waiver contemplated by section 113. As was the case in Fitzgerald, filing a claim, appearance before the board, and acceptance of payments on decedent’s part did not amount to a declaration of an intention to waive.' And, similarly, the appearanee and payment of disability awards by the self-insured employer herein did not constitute an announced intention to waive on the application for death benefits.

The Ahern decision {supra) did not, as the majority hold, broaden and liberalize the requirements for waiver under section 113. In that case, the carrier involved had participated in hearings before the board and made payments on a disability claim to the injured workman, as ordered by the board, for a period of four and one-half years, and first contested jurisdiction after that period of time had elapsed. Recovery under the FELA was then barred by the three-year limitation period prescribed therein (U. S. Code, tit. 45, § 56).

In view of those circumstances, this court in Ahern found it unnecessary to enforce the standards propounded in Fitzgerald since an equitable estoppel was clearly present — the FELA Statute of Limitations had run—and the case turned on that circumstance. The Supreme Court of the United States so construed the Ahern case, upholding the determination on the ground of equitable estoppel, pointing out that the limitation period had run and that we viewed “ these circumstances as estopping appellant ” (344 U. S. 367, 371-372, 373, supra).

Here, there is no evidentiary basis whatever for a finding of equitable estoppel. The carrier from the start—while the Baird litigation was proceeding through the courts—reserved the right to controvert for such other reasons as may later appear. Several months after Baird was decided, the jurisdictional defense was formally asserted on the basis of our decision in Baird; and at the time of this assertion of the defense, claimant was afforded nearly 15 months to institute action under the FELA.

Judge Foster in his opinion in the Appellate Division clearly showed that the FELA limitation period had not elapsed at the time that the jurisdictional defense was asserted by respondent (see discussion 7 A D 2d 253, 255-256; Dusek v. Pennsylvania R. R. Co., 68 F. 2d 131 [analyzing relevant Supreme Court cases]). The board had mistakenly held otherwise, and based its decision on a clearly erroneous finding of fact.

Concluding this discussion of the jurisdictional question, the impact of the majority’s decision in this case is to the following effect: The standards for waiver under section 113 of the Workmen’s Compensation Law are now being liberally construed for the benefit of a claimant who slept on her rights for nearly 15 months — during which period she could have instituted action under the FELA. As a result, the standards for waiver will henceforth be liberally applied in all cases, and, in consequence, workmen who may mistakenly file claims under our Workmen’s Compensation Law and accept benefit payments in ignorance of their rights will be barred from securing substantially greater recoveries under the FELA.

Turning next to the second issue involved on this appeal, the particular question presented is whether the wrongful death action brought by appellant against the owner and operator of the car involved in the 1948 accident constitutes a third-party action within the meaning of section 29. Holding that it is such an action would mean that appellant herein was entitled only to deficiency compensation in the first instance, and that she lost that right by virtue of the settlement of the third-party action without respondent’s consent, in violation of subdivision 5 of section 29 (O’Brien v. Lodi, 246 N. Y. 46, 51; Matter of Roth v. Harlem Funeral Car Co., 243 App. Div. 459, affd. 268 N. Y. 661).

Section 29 of the Workmen’s Compensation Law was designed to place the ultimate liability in damages for the loss sustained by the workman — or his dependents, as the case may be — on the third party who stands outside of the employer-employee relationship; to minimize the financial burden imposed upon the party liable for compensation and, at the same time, ensure a full—but only a single — recovery to the injured workman or his dependents. Thus section 29 grants to the party liable for compensation the benefit of any recovery or right of action, which may be had by the one injured or wronged, against the third party who is independently liable for the same wrong or injury as to which compensation is due (Matter of Parchefshy v. Kroll Bros., 267 N. Y. 410: Matter of Zirpola v. T. & E. Casselman, Inc., 237 N. Y. 367, 373; Caulfield v. Elmhurst Contr. Co., 268 App. Div. 661, 664, affd. 294 N. Y. 803; Employers Mut. Life Ins. Co. v. Refined Syrups & Sugars, 184 Misc. 941, 944-945, affd. 269 App. Div. 931). This benefit accrues to the party liable for compensation even though it may have in fact contributed to the injury of the workman by its own negligence (Caulfield v. Elmhurst Contr. Co., supra-, Employers Mut. Life Ins. Co. v. Refined Syrups & Sugars, supra).

Appellant in this case concedes the fact — and, as appears from the petitioning papers and orders issued in the Surrogate’s proceedings, it is abundantly clear — that the third party against whom appellant brought suit contributed in some measure to her husband’s death. The wrong redressed by compromise of that wrongful death action was personal to appellant and her minor son, and was in reality not decedent’s death, or the physical injury caused to him, but rather the extinguishment of their means of support as a result of decedent’s death. For death per se or physical injury to decedent there could be no recovery in a wrongful death action. In consequence, the damages recovered by compromise of that action reflected the pecuniary loss sustained by appellant and her minor son as a result of decedent’s death (see Holmes v. City of New York, 269 App. Div. 95, 97-98, affd. 295 N. Y. 615).

This same analysis obtains for death benefits under the Workmen’s Compensation Law. Hence the death benefits awarded to appellant and her minor son by the board in this case were designed to recompense them, as dependents, for the pecuniary loss sustained as a result of decedent’s death (Workmen’s Compensation Law, § 16; see Matter of Schwabacher v. International Salt Co., 298 N. Y. 726, affg. 272 App. Div. 173). Respondent was charged with liability for the loss to the widow and son since it too, by reason of the industrial accident sustained on its premises, contributed to their decedent’s death.

The conclusion to be drawn from the foregoing is that two independent torts inflicted upon decedent by two parties coalesced to cause his death and thereby gave rise to a single wrong or injury—extinguishing support — to his widow and minor son-, and compensation under the Workmen’s Compensation Law was due for this single wrong from one party responsible, the employer, and an action for damages at law for the same single wrong lay against the third-party tort-feasor. It is unmistakably clear, therefore, that the right of action which appellant had against the third-party tort-feasor is within the purview of section 29. That section comes into operation where the one injured, as here, has a right of recovery against a third party who is independently liable for the same single wrong as to which compensation is due. In such a situation, the party liable for compensation—here respondent — is granted the right to have its compensation burden minimized, and the ultimate responsibility in damages is placed on the third-party tortfeasor. Such is the law of this State. ‘‘ Untoward ’ ’ double recoveries — as Judge Foster stated (7 A D 2d, at p. 256) —such as that had by appellant for the single wrong done unto her is thereby also prevented (Matter of Parchefsky v. Kroll Bros., 267 N. Y. 410, 414, supra; Matter of Zirpola v. T. & E. Casselman, Inc., 237 N. Y. 367, 372-373, supra; see Matter of Schwabacher v. International Salt Co., supra).

Even aside from the statutory policy of section 29, under general common-law principles a single injury or loss may be redressed only once. “ The law does not permit a double satisfaction for a single injury” (Milks v. McIver, 264 N. Y. 267, 270; see, also, Barrett v. Third Ave. R. R. Co., 45 N. Y. 628, 635; Brooks v. Rochester Ry. Co., 156 N. Y. 244). And if a partial recovery is had against one party liable for the total loss, a recovery against another party also liable for the total loss is limited to the amount of the deficiency (see Knapp v. Roche, 94 N. Y. 329, 334; Sagan v. State of New York, 205 Misc. 435; Debtor and Creditor Law, §§ 231, 233).

The majority of this court has taken the position that since the automobile accident did not occur in the course of employment and was not contemporaneous with the industrial accident, the wrongful death action cannot be a third-party action within the meaning of section 29. In the first place, the plain language of section 29 does not impose any such requirements. The only conditions imposed by that section are: (1) “If an employee entitled to compensation under this chapter” (2) “be injured or killed by the negligence or wrong of another ” (3) “ not in the same employ ’ But, more important, the same argument was in substance advanced in the Parchefsky case (supra) and was there rejected and disposed of by this court (see 267 N. Y., at pp. 416-418). There is no authority for the position of the majority in this casó.

In Parchefsky a workman sustained a cut on his wrist in the course of his employment. At a subsequent time the injury was aggravated as the result of malpractice by a physician. We held that under the Workmen’s Compensation Law the employer was liable for both the result of the original injury and the subsequent malpractice; and that if a recovery was had against the negligent physician in a common-law suit for the results of the malpractice, that recovery enures to the benefit of the employer, who then as a practical matter is liable only for the original injury apart from the results of the malpractice.

Judge Lehman, writing for the court, stressed the fact that our Workmen’s Compensation Law in such a case imposed liability on the employer for the ' ‘ ultimate results of the injury ’ ’ caused to the employee. But he added (267 N. Y., at p. 418): “ To the extent that the injury for which compensation may be made under the Workmen’s Compensation Law includes the result of malpractice [i.e., the subsequent and noncontemporaneous tort], the injury ’ is due to the negligence of the physician within the spirit and letter of the statute.” (Emphasis in original.) In other words, the recovery in such a case from the subsequent and noncontemporaneous tort-feasor, the physician, is a third-party recovery within the meaning of section 29. The fact that the tort of malpractice, or any other tort, is not contemporaneous with the industrial accident is of no moment.

In the instant case, the “ injury ” or wrong done to appellant was the extinguishment of her means of support. Compensation was due for that injury. However, a subsequent tort coalesced with the industrial accident to cause that injury; and both tort-feasors were independently liable for the same injury or wrong. Hence the award of benefits by the board in the instant case of necessity “included” and compensated appellant for the “ result ” of the subsequent and noncontemporaneous tort. The recovery had herein by appellant against the subsequent tort-feasor, therefore, squarely falls within the ambit of section 29, in accordance with the rule of the Parchefsky case {supra).

An additional ground supports our view. The automobile accident, or subsequent tort, herein involved unquestionably aggravated the industrially caused ulcer condition, and brought on decedent’s death. That was appellant’s position in the wrongful death action and in the proceedings before the Surrogate— in which the employer was deprived of participation. Section 459, Restatement, Torts, states: “If the negligent actor is liable for an injury to a part of another’s body which renders it peculiarly susceptible to the harmful effect of later accidents, the actor is also liable for further harm sustained by such part in a subsequent accident, if such harm would not have been sustained had such part of the other’s body not been weakened by the actor’s negligence.” (Emphasis supplied.) (Accord: Conner v. City of Nevada, 188 Mo. 148, 161-162 [quoted and approved in Wagner v. Mittendorf, 232 N. Y. 481, 487].) When thus viewed, the instant case is exactly the same as the classic aggravation of injury case involving a malpracticing doctor, dealt with in Matter of Parchefshy v. Kroll Bros, (supra). We can find no distinction between inflicting a subsequent injury by a surgeon’s scalpel as in Parchefshy or by an automobile as here. And indeed a right of subrogation—which the majority hold is an essential prerequisite to the application of section 29—would be afforded the employer against the subsequent tort-feasor who aggravated the industrially .caused ulcer condition (267 N. Y. 410, 414).

To spell this out: The facts show that the industrial accident left decedent with an ulcer condition. This ulcer was ruptured or perforated as a result of the automobile accident, and decedent died in consequence thereof. Since the employer was responsible for the weakened condition which rendered decedent susceptible to the further harm, it is liable for the total loss. Similarly, the third party took his victim as he found him, and is also liable for the total loss, notwithstanding the fact that but for the ulcer — which he in no way caused — decedent would not have sustained a rupture or perforation thereof and died. In such a case, however, as in the classic subsequent aggravation of injury case involving a malpracticing doctor, the first tortfeasor who is liable for the entire loss is subrogated to the rights of the injured party against the subsequent tort-feasor who aggravated the original injury.

Any attempt, therefore, to distinguish Parchefshy (supra) factually, or on principle, is, in our opinion, clearly untenable. Here involved is a true third-party action, as contemplated by section 29, and claimant by settling that action without the consent of the employer prejudiced the latter’s rights.

Finally, as to the matter of the board’s finding that the automobile accident was not the cause of the husband’s death: Appellant herself has repudiated this finding—which as a matter of law has no basis in the record—by conceding that both injuries caused her loss.

Accordingly, the order appealed from should be affirmed.

Judges Dye, Fuld and Burke concur with Chief Judge Desmond ; Judge Froessel dissents in an opinion in which Judge Van Voorhis concurs; Judge Foster taking no part.

Order reversed, etc.  