In the Matter of the Claim of Johanna Duffy, Appellant, v. G. A. Fuller Co. et al., Respondents. Workmen's Compensation Board, Respondent, 21 A.D.2d 725

Appeal from a decision of the Workmen’s Compensation Board which rescinded an award of death benefits, upon a finding that claimant had compromised a third-party action without consent of the carrier. The original award directed the carrier to continue payments pending the outcome of a wrongful death action against a third party, which had been commenced by the executor of decedent’s estate. The executor was a grown son of the deceased and was not a dependent within the meaning of the Workmen’s Compensation Law.

This action was terminated more than two years after decedent’s death when the attorneys for the parties signed a stipulation of discontinuance. Prior to this discontinuance, claimant signed an agreement wherein she agreed to withdraw her action and authorized her attorneys to sign a stipulation of discontinuance. The carrier ceased compensation payments upon learning of the executor’s discontinuance.

The board rescinded a Referee’s direction of further payments, finding that the discontinuance was a compromise made more than two years after the date of death without the carrier’s consent and that, therefore, the carrier was relieved of liability under subdivision 5 of

section 29 of the Workmen’s Compensation Law. The executor was the proper party plaintiff to bring a third-party action and was the representative of the claimant. (Decedent Estate Law, § 130.) A discontinuance is a compromise requiring consent within

section 29 of the Workmen’s Compensation Law and taking such action without consent relieves the carrier and the employer of liability even though no prejudice results. (Matter of Gruhn v. Miller Brown, Inc., 275 App. Div. 975; see, also, Matter of Clark v. Oakes & Burger Co., 16 A D 2d 490.) Decision affirmed, without costs. Gibson, P. J., Reynolds, Taylor, Aulisi and Hamm, JJ., concur.