Majority
p. 906In the Matter of the Claim of Charles Tannenbaum, Respondent, against Weil Freeman, Inc., and Another, Appellants. State Industrial Board, Respondent.
Appeal by employer and the insurance carrier. The award is opposed on the ground that the claimant had elected to sue a third party and began an action against that third party, which action he discontinued without the consent of the employer or the insurance carrier. The claimant’s notice of election to sue was dated April 30, 1935. On December 11, 1936, claimant’s
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attorney stated that the action had been discontinued and on April 8, 1937, the discontinuance was in the file of the referee. The cause of action of claimant for personal injuries did not expire until April 4, 1938. The employer and carrier were not prejudiced by claimant’s attempt to recover against third party. Award affirmed, with costs to the State Industrial Board. Hill, P. J., Rhodes, Crapser and Heffernan, JJ., concur; Bliss, J. I concur in the result solely upon the ground that the employer and carrier consented to the making of the award here appealed from.