Claim of Hammele v. McMahon — 220 A.D. 60

Majority

p. 60

In the Matter of the Claim of Albert Hammele, Respondent, against James McMahon, Employer, Impleaded with Globe Indemnity Company, Appellant. State Industrial Board, Respondent.

Third Department,

March 12, 1927.

Headnote

Workmen’s compensation — appeal — contest on appeal is between employer and carrier — no notice of appeal served on or addressed to employer — appeal dismissed — practice of attorneys, who appeared for employer on hearing, in appearing on appeal to avoid liability of carrier, is reprehensible and is disapproved.

This appeal, between the employer and an insurance carrier, is dismissed since no notice of appeal was served on or addressed to the employer.

The practice of the attorneys, who having appeared on the hearing in behalf of the employer, now appear on the appeal, without notice to the employer, in behalf of the insurance carrier, in an attempt to avoid liability on the part of the carrier and to cast it on the employer, is reprehensible and is disapproved.

Appeal by Globe Indemnity Company from an award of the State Industrial Board, made on the 8th day of Apr 1, 1926, awarding the claimant twenty per cent loss of the left hand.

p. 61

Ireland & Caverly [William S. Pendleton of counsel], for the appellant.

Albert Ottinger, Attorney-General [E. C. Aiken, Deputy Attorney-General, of counsel], for the respondents.

The contest on this appeal is between the employer and insurance carrier. The award was made against both. The carrier now seeks to avoid liability on the ground that the policy had been canceled. The employer is the party chiefly interested. No notice of appeal has been served on or is addressed to the employer.

There is also here a reprehensible practice. The attorneys who are prosecuting the appeal for the carrier are the same who defended against the claim for the employer before the Industrial Board. Now, without notice to the employer, they are seeking to avoid liability on the part of the carrier and to cast the entire liability upon the employer by means of this appeal. The attorneys who represented the employer have in effect turned against him and have given him no notice that they not only have abandoned him but are attempting, without warning, to injure him. Such conduct is disapproved.

The appeal should be dismissed, with costs against the carrier.

Van Kirk, Acting P. J., Hinman, McCann, Davis and Whitmyer, JJ., concur.

Appeal dismissed, with ten dollars costs to the employer against the insurance carrier.