The opinion of the court was delivered by: CAMPBELL
CAMPBELL, District Judge.
This is an action brought by the insurance carrier, the plaintiff, to review the compensation order made by a deputy commissioner of the United States Employees' Compensation Commission, and restrain its enforcement by injunction.
Natale Avaltroni, a longshoreman in the employ of A. Pellegrino & Sons, met his death on October 13, 1932, in the course of such employment and while working on board the steamship Astrea, a vessel afloat in navigable waters of the United States, at the foot of Pier 12, Brooklyn, N.Y., and owned by the Royal Netherlands Steamship Company.
The payment of compensation was secured by the plaintiff in the above-entitled action.
The deceased left him surviving a widow and eight children, four of whom are under the age of eighteen years and are considered dependents, pursuant to the Longshoremen's and Harbor Workers' Compensation Act § 8, title 33, § 908, U.S.C. (33 USCA § 908).
The deputy commissioner found that prior to the commencement of a suit against the alleged third party wrongdoer, the widow was advised by a claims adjuster of the carrier that she could institute a third party suit, and that if she later found that she could not continue her suit, she could drop it and compensation would be paid to her.
On or about the 7th day of December, 1932, the widow filed the usual notice of election to sue the alleged third party wrongdoers, Royal Netherlands Steamship Company, owner of the said steamship Astrea, and said action was instituted by service of the summons in an action in the Supreme Court, Kings County, and on the petition of the defendant subsequently removed to this court.
A short time thereafter, the widow, Susie Avaltroni, became hard pressed for money and found that she was unable to feed, clothe, or shelter herself and her children.
On or about March 14, 1933, the said widow verbally notified the claims manager of the carrier company, the plaintiff, of her financial condition, and that she would be unable to await the outcome of her third party action, and at the same time she offered to assign or subrogate the carrier to her rights against the third party.
The last day on which an action against the third party wrongdoer may be commenced will be the 13th day of October, 1934.
The carrier, the plaintiff, remained silent.
The claimant advised the Compensation Commissioner of the plaintiff that she desired to discontinue the action and be paid compensation.
On April 6, 1933, the widow notified the carrier, the plaintiff, and its attorneys, by registered mail, of her intention to discontinue and to claim compensation, and further of her intention to co-operate with the carrier, the plaintiff, so that its legal rights would in no way be prejudiced or affected.
The carrier, the plaintiff, and its attorneys remained silent.
On April 26, 1933, the American Lumbermen's Mutual Casualty Company, the carrier, the plaintiff herein, Alexander, Ash & Jones, Esqs., its attorneys, and the Royal Netherlands Steamship Company, were each separately served with a notice of motion to discontinue, made returnable May 3, 1933, before Hon. Mortimer W. Byers, a judge of this court. Upon the return day of this motion, the attorneys for the carrier, the plaintiff, appeared and did not oppose the motion, but submitted an affidavit in which the facts were recited and the claim made that the carrier was not a proper ...