
    In the Matter of the Claim of Edith Nash, Appellant, against Riverside & Dan River Cotton Mills, Inc., et al., Respondents. Workmen’s Compensation Board, Respondent.
   Claimant appeals from a decision of the Workmen’s Compensation Board, made May 14, 1947, which affirmed a referee’s decision disallowing her claim for deficiency compensation upon the ground that she settled her third party action without the written consent of her employer’s compensation insurance carrier, and that the latter was not estopped to defend on account thereof. In making the decision under appeal the board stated that nothing ” appeared in the record upon which to base a finding that the carrier waived ©r is estopped by its conduct from raising the bar of the statute * * As a legal proposition this was incorrect for there was ample evidence to justify such a finding. Claimant’s attorney testified he secured the oral consent of the respondent-carrier to the settlement and was induced thereby to make it, and the latter’s representative testified that he told claimant’s attorney that he wanted the full amount of his company’s lien paid before he would consent. Of course, such payment could only have been made upon a settlement of the third party action, and it was so paid to and retained by the respondent carrier out of the proceeds. It therefore is not certain whether the board’s formal finding to the effect that the carrier did not waive, nor is it estopped from raising the bar of the statute ” was one of fact as a result of the consideration of the conflicting evidence, or was based upon the legal premise which was erroneously stated in its decision of May 14, 1947. For that reason the decision appealed from should be reversed and the matter remitted to the board for a further decision on the facts. Decision reversed and matter, remitted to the Workmen’s Compensation Board for further decision on the facts, without costs. Hill, P. J., Heffernan, Brewster, Foster and Deyo, JJ., concur.  