The opinion of the court was delivered by: BYERS
This is a defendant's motion for summary judgment in a personal injury case in which the complaint alleges that the defendant's liability to him arises under the Federal Employers' Liability Act, and the Boiler Inspection and Safety Appliance Acts, 45 U.S.C.A. §§ 51 et seq., 22 et seq., 1 et seq.
It clearly appears that the accident occurred on January 21, 1947, when the plaintiff was performing the duties of a hostler on a locomotive of the defendant in the Kent Avenue yard in Brooklyn.
Also that the plaintiff promptly made claim for compensation under the New York State Workmen's Compensation Law, Consol. Laws, c. 67, and his claim being allowed, he continued to collect payments under the award until the total of $ 2,296.57 had been received, plus $ 432.45 medical and hospital expenses, or $ 2,729.02 in all. The payments commenced in February, 1947, and continued until some time in January, 1949, when he withdrew his claim 'without prejudice', which perhaps was meant to forecast a resubmission, depending upon the outcome of this litigation.
The complaint was filed April 19, 1949, and the answer on May 13, 1949.
The matters embraced in this motion are pleaded in Third and Fourth complete and affirmative defenses, namely:
As to the Third, that plaintiff agreed to accept the compensation benefits from the defendant in lieu of any other right, and is thus estopped to maintain this action; and that defendant stands ready to make any and all further payments required of it pursuant to the said law.
As to the Fourth, that in applying for the said compensation plaintiff agreed to accept, and defendant agreed to pay the statutory benefits in full accord and satisfaction of the claim asserted in this complaint. died, testate, on October 24, 1947. By his last will and testament he them the following salient matters appear:
The affidavits pro and con present no disputed issues of fact. From them the following salient matters appear:
A. On February 17, 1947, the plaintiff signed a paper which he understood would enable him to receive workmen's compensation without having to appear before the Board. It contained these words: 'I have no intention of suing my employer but going to take voluntary compensation.' This was given to an investigator acting for the defendant, at a time when the plaintiff was still suffering pain from his injuries.
B. Plaintiff appeared before the Referee acting for the Compensation Board on May 14, 1947, without a lawyer.
The record shows that the Referee said: 'It's a question of jurisdiction.' To which the carrier replied: 'No, we waive that, we are paying the man at $ 28.00', which statement the plaintiff confirmed. Finally the Referee said: 'Accident, notice and causal relationship established as to a head and back injury. Continued for a C-8.'
The reference to the jurisdictional question had to do with the possible interstate business of the defendant, which if present as to plaintiff's injury would relieve the carrier except as to a possible intrastate component, as will be seen.
It would be exacting too much of the plaintiff to attribute to him, at that time, an understanding of the subject, and hence a knowledge that could support a waiver of his right to assert his claim in a lawsuit. Cf. Wyatt v. New York, O. & W. R. Co., 2 Cir., 45 F.2d 705, at page 707 et seq.
C. On September 29, 1947, the plaintiff retained the lawyer who filed this complaint, and who also appeared for him before the Compensation Board Referee at several hearings from and after October 9, 1947, in connection with contested matters respecting the rate of compensation payable to plaintiff; on June ...