Misc.] Supreme Court, Appellate Term, June, 1915. only with the written approval of the commission, if the deficiency of compensation would be payable from the state insurance fund, and otherwise with the written approval of the person, association, or corporation liable to pay the same." Prior to the commencement of this action the commission had by suitable rules and regulations ordained the manner in which the election provided for in the foregoing section should be exercised; but the plaintiff brought suit without making the prescribed election, and the appellant claims that his failure to comply with the statute in this respect is fatal to the judgment. Under section 10 the employers were required to compensate for the injuries, even though caused by a third party, and section 11 provides that the liability prescribed by section 10" shall be exclusive," except that if the employer fails to comply with the statute the injured employee or his representative may "elect to claim compensation " under the act or to maintain an action for damages on account of the injury, in which action the defendant cannot avail himself of the defenses that the injury was caused by the negligence of a fellow-servant or that the employee assumed the risk of his employment or that the injury was due to his contributory negligence. Although section 11 states that the liability prescribed by the statute shall be exclusive, I am of the opinion that this refers solely to the liability of the employer, and that the act does not prevent an injured employee such as the plaintiff from seeking redress in a common law action as against third parties causing his injuries. A consideration of all the provisions of section 29 in connection with other parts of the act indicates that to carry out the scheme of subrogation provided Supreme Court, Appellate Term, June, 1915. [Vol. 90. for in that section the "suit" referred to therein is any suit, whether pursuant to the act or otherwise; that an employee sustaining injuries in the course of his employment through the acts or defaults of a party other than his employer, and suing such party, is required to make and signify his election in accordance with the statute and the rules and regulations of the commission as a condition precedent to the collection through the commission of any deficiency between the recovery in the action and the compensation provided for by the act; that no such election having been made by the plaintiff he has no right to such deficiency, if any, but that the failure to make the prescribed election in no way affects the judgment appealed from which should be affirmed with costs. Judgment affirmed, with costs, with leave to defendant to appeal to the Appellate Division. LEHMAN, J. (concurring). The plaintiff has recovered a judgment for injuries suffered through the negligence of the defendant's employees. At the time of the accident the plaintiff was working on a building which was being constructed by Bing & Bing, as general contractors, and the plaintiff was in their employ. The plaintiff's injuries resulted from an accidental personal injury sustained by the employee arising out of and in the course of his employment" within the meaning of section 10 of the Workmen's Compensation Law, and the plaintiff's employment was hazardous within the meaning of section 2 of the same law. His employers had complied with all the requirements in regard to insurance provided by that law, and undoubtedly the plaintiff could have obtained compensation by claim to the commission. He preferred, however, to bring this suit against the defendant. Mise.] Supreme Court, Appellate Term, June, 1915. Section 11 of the Workmen's Compensation Law provides that "the liability presented by the last preceding section shall be exclusive," except that if an employer fails to secure the payment of compensation for his injured employees and their dependents as provided in section 50 of this chapter an injured employee or his legal representative in case death results from the injury may at his option elect to claim compensation under this chapter or to maintain an action in the courts for damages on account of such injury, and in such an action the defendant may not plead as a defense that the injury was caused by the negligence of a fellow servant or that the employee assumed the risk of his employment or that the injury was due to the contributory negligence of the employee. The meaning of this section seems to me to be quite clear when read in conjunction with the remainder of the law. By virtue of section 10 a liability unknown to the common law was imposed upon employers in designated employments to pay compensation for practically all injuries sustained by an employee arising out of and in the course of his employment" without regard to fault as a cause of such injury." In other words the expense of compensating employees for all injuries sustained was made a burden upon the industry and the old common law doctrine that compensation can only be obtained from a party whose fault caused the injury was abandoned. In order to make the new system complete it was provided that this form of compensation should be “ exclusive "except where the employer failed to secure the actual payment of this compensation to the employee as provided by law. By means of these sections the legislature has attempted to solve the difficult problem of securing to the employee fair compensation for injuries. It has, however, merely attempted to deal Supreme Court, Appellate Term, June, 1915. [Vol. 90. with the liability of the employers toward their employees and while the new liability it has provided is declared to be "exclusive " it seems to me quite clear that the word "exclusive " refers only to the liability which the new law deals with, i. e., the liability of the employer to his employee and that it would be absurd to hold that the legislature had any intention of depriving an injured employee of any common law rights against third parties. This construction is obviously borne out by the provisions of section 29 which reads as follows: "Section 29. Subrogation to remedies of employees. If a workman entitled to compensation under this chapter be injured or killed by the negligence or wrong of another not in the same employ, such injured workman, or, in case of death, his dependents, shall, before any suit or claim under this chapter, elect whether to take compensation under this chapter or to pursue his remedy against such other. Such election shall be evidenced in such manner as the commission may by rule or regulation prescribe. If he elect to take compensation under this chapter, the cause of action against such other shall be assigned to the state for the benefit of the state insurance fund, if compensation be payable therefrom, and otherwise to the person or corporation liable for the payment of such compensation, and if he elect to proceed against such other, the state insurance fund, person or association or corporation, as the case may be, shall contribute only the deficiency, if any, between the amount of the recovery against such other person actually collected, and the compensation provided or estimated by this chapter for such cause. Such a cause of action assigned to the state may be prosecuted or compromised by the commission. A compromise of any such cause of action by the workman or his dependents at Misc.] Supreme Court, Appellate Term, June, 1915. an amount less than the compensation provided for by this chapter shall be made only with the written approval of the commission, if the deficiency of compensation would be payable from the state insurance fund, and otherwise with the written approval of the person, association or corporation liable to pay the same." Under this section it appears expressly that an employee has a right to "elect whether to take compensation under this chapter or to pursue his remedy against such other" and it follows therefore that the Workmen's Compensation Law has not deprived an injured employee of his common law right of action against a negligent third party. It is urged, however, that since this section provides that such injured workman shall, before any suit or claim under this chapter, elect whether to take compensation under this chapter or to pursue his remedy against the other" the plaintiff in this common law action must plead and prove that he has made such election in the manner prescribed by the rule or regulation of the commission. It seems to me, however, that such a construction of this section. is forced. The law requires an election only "before any suit or claim under this chapter" and the words which I have italicized refer to and limit both the words "suit" and "claim." It seems to me that the words quoted, standing even alone, and the strict grammatical construction thereof, show that this was the meaning of the legislature, and the whole tenor of the statute shows that this was the legislative purpose. As stated above, the only liability which the legislature has attempted to deal with is the liability of the employer. The statute in nowise attempts to regulate or change the ordinary common law liability of other parties for their own negligence, but since the employer is made liable for injuries without regard to his fault it |