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Pedersen v. Manitowoc Co.

29 A.D.2d 741 Court N.Y. App. Div. Decision date 1968-02-01 English

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p. 741
Agnes Pedersen, as Administratrix of the Estate of Karl Pedersen, Deceased, et al., Respondents, v. Manitowoc Company, Inc., et al., Defendants, and Frederick Snare Corporation et al., Appellants.

Order entered November 3, 1965, herein appealed from, unanimously reversed, on the law-, with $50 costs and disbursements to appellants and defendants-appellants’ motion for summary judgment is granted. Defendants-appellants were engaged in a joint venture under the name -Snare-Dravo which involved the construction of the Newburgh-Beacon Bridge in Orange County, New York. Plaintiff’s intestate Karl Pedersen and plaintiffs Sepinski and Stottler were employees of the joint venture. An accident occurred as a result of which Pedersen lost his life and Stottler and Sepinski were injured. Plaintiffs commenced proceedings in workmen’s compensation -against Snare-Dravo and, in each instance, an award was made and accepted. In May, 1963 plaintiffs eoinmeneed this action based on common-law negligence and also, allegedly, under the Jones Act (U. S. Code, tit. 46, § 688). Appellants moved for dismissal of the complaint and for summary judgment. Their motion was denied and

p. 742
this appeal resulted. Plaintiffs, having moved in workmen’s compensation, actively participating in the hearings therein until an award was made, have effectively compromised their claim and waived any right to proceed against their employers in this action (Dacus v. Spin-Nes Beatty & Gonstr. Go., 29 A D 2d 32 ; Workmen’s Compensation Law, § 113; cf. Williams v. Hartshorn, 296 N. Y. 49 ). The joint venture was in effect a partnership, and plaintiffs having accepted the awards after hearings in which they participated, have no further claim (Williams v. Hartshorn, supra). Concur — Stevens, J. P., Steuer, Capozzoli, McGivern and Rabin, JJ.

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