"Where the causal negligence is attributable partly to the carrier and partly to the injured employee, he shall not recover full damages, but only a diminished sum bearing the same relation to the full damages that the negligence attributable to the carrier bears to the negligence attributable to both." Seaboard Air Line v. Tilghman, 237 U. S. 499, 35 Sup. Ct. 653, 59 L. Ed. 1069. In order that the jury may properly apply this rule, they must have the proper factors. As we have eliminated one of the factors which they presumably used, there must be a new trial. The question submitted to the jury was as follows: "Was there negligence on the part of the defendant's servant who was operating engine No. 545 in not having a light on the rear of said engine, which was a proximate cause of the plaintiff's injury?" There was some evidence that it was the duty of the hostler in charge of the engine to see to the lights on the engine. This engine was in charge of a fellow employee of the plaintiff, a hostler, and the plaintiff. It was backing down the storage track. Plaintiff stood on the tender with a lantern in his hand. When he had reached a point 60 feet from an engine which was standing there, and to which it was to be coupled, he jumped down, taking the light with him, and leaving dark the forward part of the tender as it approached. Under these circumstances the plaintiff knew all about the situation of the locomotive. He testified that, notwithstanding there was no light, he saw the locomotive. He saw it when it was 15 feet away, for he waved his lantern as a signal to the engineer to stop. He saw it when it was 10 feet away, according to his own evidence, when it looked as if it had stopped. It is undoubtedly the duty of a railroad company to give warning, either by light, or sound, or in some other way, when it is moving its locomotive in a yard where employees are apt to be at their work, so that those whose duty may call them upon the track shall have notice of its approach. I cannot see how the absence of a light on this locomotive can be negligence as to the plaintiff, and I think it plain that the plaintiff assumed any risk he might run from the danger caused by the absence of the light, for he know all about the situation, and in fact his very act in jumping down with the light in his hand created the condition of which he complains. It was error, therefore, to submit to the jury the first question regarding the defendant's negligence. The judgment and order should be reversed, and a new trial granted; costs to abide the event. All concur. Where an injured employee, in pursuance of Workmen's Compensation Law, § 11, brought an action for damages against a married woman as * Dceision rendered, November 13, 1918. 172 N. Y. Supp. 695. his employer, and the suit was dismissed, the claimant, by the election to sue her, is barred from subsequently seeking an award under the act against the husband and wife jointly; the evidence showing that the wife was in fact the employer. (For other cases, see Master and Servant, Dec. Dig. § 351.) John M. Kellog, P. J., and Woodward, J., dissenting. Appeal from State Industrial Commission. Proceeding by Antonio Crinieri under the Workmen's Compensation Law, opposed by Louis Gross and Marie his wife, uninsured employers. From an award of the State Industrial Commission, the employers appeal. Reversed, and claim dismissed. Argued before John M. Kellogg, P. J., and Lyon, Woodward, Cochrane, and Henry T. Kellogg, JJ. Scott & Sneed, of Newburgh, for appellants. Merton E. Lewis, Atty. Gen., and Robert W. Bonynge, of New York City, for State Industrial Commission. HENRY T. KELLOGG, J. The claimant, having been injured through an accident, brought an action to recover damages against one Marie Gross, alleging that she was his employer, that she had failed to secure compensation for her employees, and that he was injured through her negligence. Marie Gross in her answer alleged that the employer of the claimant was not herself, but one Louis Gross, her husband. The complaint was dimissed. Thereafter the claimant filed a notice of claim, in which, in answer to the question, "Name of Employer?" he wrote "Louis Gross, or Marie Gross, his wife." The commission made an award against Louis Gross and Marie Gross, both of whom were found to be the employer of the claimant. A difficulty confronting the commission was the fact that, if Marie Gross was the employer, the claimant had previously made his election to bring an action against her, and therefore could not later have an award upon a claim afterwards field. Workmen's Compensation Law (Consol. Laws, c. 67) § 11; Pavia v. Petroleum I. W. Co., 178 App. Div. 345, 164 N. Y. Supp. 790. This difficulty was overcome by the very easy method of merely making a finding that the claimant was employed by Marie Gross and Louis Gross jointly, to sue whom as partners an election had never been made. There was no legal evidence that Marie Gross and Louis Gross were employers of the claimant. Moreover, there was no legal evidence that Louis Gross was the employer. Both the notice of injury and the claim for compensation named "Louis Gross or Marie Gross or both of them." The only positive evidence upon the subject was given by the claimant, who testified that Marie Gross hired him, directed him, and paid him, and in answer to the question, "You were employed by Marie Gross on the 24th day of March, 1917?" replied "Yes, sir." There was, therefore, no foundation whatsoever for the finding of the commission that the claimant was employed by Marie Gross and Louis Gross. On the contrary, it was proven that he was employed solely by Marie Gross, and as against her the claim was barred by an election previously made. The award should be reversed, and the claim dismissed. JOHN M. KELLOGG, P. J. (dissenting). "The institution by a party of a fruitless action, which he has not the right to maintain, will not preclude him from asserting the rights he really possesses. Kinney v. Kiernan, 49 N. Y. 164." McNutt v. Hilkins, 80 Hun. 235, 239, 29 N. Y. Supp. 1047, 1050. "The principles governing election of remedies are necessarily based upon the supposition that two or more remedies exist. If in fact or in law only one remedy exists, there can be no election by the pursuit of another and mistaken remedy. It is a well-established rule that the choice of a fancied remedy that never existed, and the futile pursuit of it, either because the facts turn out to be different from what the plaintiff supposed, though the first action proceeds to judgment, does not preclude the plaintiff from thereafter invoking the proper remedy." 9 Ruling Case Law, p. 962, § 9. "The question depends for its answer upon the law of election of remedies. Where two inconsistent remedies, proceeding upon irreconciable claims of right, are open to a suitor, the choice of one bars the other. But, to have that effect, the remedies must be inconsistent." Ratchford v. Cayuga Co. Cold Storage & W. Co., 217 N. Y. 565, 568, 112 N. E. 447, 448 (L. R. A. 1916E, 615). Woodward J., concurs. SUPREME COURT OF NEW YORK. APPELLATE DIVISION, THIRD DEPARTMENT. KOLB BRUMMER ET AL.* 1. INSURANCE-CASUALTY INSURANCE-LIABILITY OF IN SURER. Under an employers' liability insurance policy, providing that no assignment or change of interest should bind the company, unless its consent be indorsed on the policy, where insured's wife inherited and carried on insured's business after his death, insurance company was not liable for an injury occurring to servant in such business after she had sent the policy to the company to be transferred, but before insurer indorsed the transfer of interest, although the insurer, without knowledge of the injury to servant, afterwards accepted the balance of earned premiums. (For other cases, see Insurance, Dec. Dig. § 392[8].) 2. INSURANCE-"CANCELLATION"-TRANSFER OF POLICY. Defense of insurance carrier to claim of injured employee that injury to employee occurred after death of insured employer, and prior to insurance carrier's indorsement of consent to transfer of policy to insured's successor in business, did not constitute a "cancellation" of the insurance contract, within Workmen's Compensation Law, § 54, subd. 5, requiring notice of cancellation. (For other cases, see Insurance, Dec. Dig. § 232.) (For other cases, see Words and Phrases, First and Second Series, Cancellation.) Kellogg, P. J., and Woodward, J., dissenting. * Decision rendered, November 22, 1918. 173 N. Y. Supp. 72. Appeal from State Industrial Commission. Proceeding under the Workmen's Compensation Act by John Kolb to obtain compensation for injuries, opposed by Meta Brummer, employer, and the New Amsterdam Çasualty Company, insurance carrier. There was an award of compensation, and the insurance carrier appeals. Award reversed as to insurance carrier. Argued before John M. Kellogg, P. J., and Lyon, Woodward, Cochrane, and Henry T. Kellogg, JJ. Frederick Mellor, of New York City, for appellant. Merton E. Lewis, Atty. Gen. (E. C. Aiken, Deputy Atty. Gen., of counsel), for respondent." Robert W. Bonynge, of New York City, for State Industrial Commission. LYON, J. Richard Brummer, the husband of the defendant Meta Brummer, was engaged in the business of trucking. He held a policy issued by the defendant New Amsterdam Casualty Company, of date August 31, 1916, which ran for one year, and upon which he had paid the estimated premium. He died June 28, 1917, leaving a will by which he gave all his property to his wife. His wife took charge of and conducted his business for about two weeks during his last sickness, and after his death continued the business in the same way. About the middle of July, 1917, as she testifies, she informed the broker through whom the insurance was procured of the death of her husband, and delivered to him the policy, to mail the same to the insurer. He wrote on the outside of the policy the words: "Kindly transfer this insurance to Meta Brummer, and return this policy to me. Buxbaum." -and mailed the policy to the insurance company, as he testified. The insurer attached to the policy a writing, dated August 22, 1917, as follows: "The interest in this policy is hereby transferred, from 12 o'clock noon of this date, to Meta Brummer." On the preceding day, August 21, 1917, the claimant was in the employ of Meta Brummer, and about 9 o'clock in the morning suffered an accidental injury to the index finger of his right hand, which resulted in the loss of the finger. On August 23, 1917, Meta Brummer, as employer, filed a claim for compensation. On October 8, 1917, the company presented a bill to her for additional insurance premium under said policy, which she paid in full. The policy had expired the August preceding. The insurance company claims it was not notified of the accident until November 12, 1917. She made a report of the injury August 23, 1917, as the employer, and thereafter an award of compensation was made to the claimant against her as an employer. On her application the award was opened, a rehearing had, and an award made against her and the New Amsterdam Casualty Company, as insurer, from which this appeal has been taken. The policy contained the following condition: "Assignment. Condition J. No assignment or change of interest under this policy shall bind the company, unless its consent shall be indorsed hereon or attached hereto, signed by a duly authorized officer of the company." [1] No act was done by Meta Brummer in reliance upon the belief that the company had consented to the transfer of the policy to her, which would estop the appellant. The liability of the insurer did not exist as to Meta Brummer until it had made a binding contract with her. It was not an insurance of property, but against personal liability, and hence the insurance was personal. The performance of this condition of the policy was essential to create liability against the insurer to another than the person to whom the policy was issued. An application for insurance to secure compensation would not charge the insurer until a contract was made. I do not think the collection of the balance of the earned premium estops the insurer from contesting liability under the contract. The bill was not presented until October 8th, and the company had no knowledge of the accident until November 12. [2] Nor do I think that section 54, subd. 5 (Consol. Laws, c. 67) is effective. This was not a cancellation of an insurance contract, within the meaning of that term as used in that section. The parties had the right to insert any lawful conditions in the contract. Allen et al. v. German-American Ins. Co. of N. Y., 123 N. Y. 6, 13, 25 N. E. 309; Dwight v. Germanic Life Ins. Co., 103 N. Y. 341, 8 N. E. 654, 57 Am. Rep. 729; Gans v. Etna Life Ins. Co., 214 N. Y. 326, 108 N. E. 443, L. R. A. 1915F, 703. [3] The defendant insurance company might have had a good reason for not assenting to a transfer of interest. The management of the business had changed, and they were no longer protected by the oversight of the husband. While the commission has the power to determine whether the policy still existed, it must determine that question on recognized principles of law. Matter of Skoczlois v. Vincour, 221 N. Y. 276, 116 N. E. 1004. The award must be reversed, so far as it is against the New Amsterdam Casualty Company. Cochrane and Henry T. Kellogg, JJ., concur. JOHN M. KELLOGG, P. J. (dissenting). The Employers' Liability Law is designed to charge upon the hazardous employment the risks flowing from it, and to protect the employee there from. Security for compensation is not required for the benefit of the employer, but solely for the benefit of the employee. It is a burden cast upon the employer and the business, to make sure to the employee the payment of compensation. It is a misdemeanor for the employer to carry on the business without insurance, and, when the insurance is effected, notice of the fact is given to the employee, so that he may work in confidence that compensation which he may be entitled to will be paid. Section 51. The insurance is more than a provision to reimburse the employer for the amounts paid by him, as the liability of the company is not affected by his insolvency or bankruptcy. Subdivision 3, § 54. The insurance cannot be canceled "within the time limited in such contract for its expiration," except after notice of 10 days to be served upon the employer and the commission. Section 54, subd. 5. The object of this is to enable the commission to see that the law is obeyed, and that no interval shall elapse during which the security for the employee does exist. If the insurance is in the state fund, it cannot be withdrawn not except upon 30 days' notice to the commission, and after other security for the employees has been provided. Section 100. I think it follows, from these and the other provisions of the law, that when security given for a particular time the employee cannot be deprived of its is benefits, except in the manner provided by law, and by cancellation of the policy on notice to the commission. It would not be within the spirit of the law to permit the employer and the insurer to vacate the policy, and deprive the employee of security without any notice to him or the commission. This policy never was canceled in the manner provided by law. The loss of the injury happened during the term of the contract, and the company is liable to the employee. The insurance company is in the same position as the state fund, with a continuing liability until the policy is canceled, as required by the law. There is nothing in the policy to the contrary. It does not provide |