Workmen's Compensation Acts in New Jersey and New York--Applying to Wrong Tribunal--Election of Tribunal.
Case of Julia Harsel, Petitioner, against William Fichter and John Engelhardt, copartners trading as Fichter & Engelhardt, Defendants. On petition for compensation under Workmen's Compensation Act.
Messrs. Kent & Kent for Petitioner.
Messrs. Kalisch & Kalisch (by Mr. Isador Kalisch) for Respondent.
STICKEL, Jr., J.: The employers contend that the petition for compensation in this case should be dismissed because the contract of employment was made in New York, and because the petitioner elected to proceed under the compensation law of New York, subsequently petitioning for compensation under the New Jersey law.
In considering the case, I felt I would be aided if I had before me the testimony taken in the New York compensation action, and counsel for the defendant very kindly supplied me therewith.
From such testimony, which I have filed in this case, as well as from the deposition filed, I am satisfied and find as a fact that the deceased was hired in New Jersey by Fichter & Engelhardt. It is quite clear to me that the deceased heard of the New Jersey job of Fichter & Engelhardt at the Union rooms in New York and that, being attracted thereby, he, after giving up the New York job, came to the New Jersey job, was seen by the foreman, Millhouse, and employed on the spot. Engelhardt appears to be a silent partner of Fichter, according to his own testimony, and the firm is, in fact, made up as stated in the title to this cause.
Furthermore, even though the contract of employment had been made in New York, the accident causing the deceased's death having taken place in New Jersey, the case falls within the New Jersey Compensation Act, and this notwithstanding the existence of a New York Compensation Act. American Radiator Company v. Rogge, 86 N. J. L. 436, aff. 87 N. J. L. 314; 245 U. S. 630; David Heiser v Hay Foundry & Iron Works, 87 N. J. L. 688 (at this time the New York Compensation Act was in force); West Jersey Trust Company v. Philadelphia & Reading Realty Company, 88 N. J. L. 102.
As to the question of election, the contention of the employers is wholly without merit. The petitioner, through attorneys other than those who now represent her, applied for compensation under the New York Compensation Act. The Commission held that it had no jurisdiction; that the case was not within the New York jurisdiction, apparently, from the testimony taken, because the Commission found that the contract of employment with petitioner was made in New Jersey and the accident took place there. Thereupon petitioner applied for compensation in New Jersey, and an informal award had been made in New Jersey, and a day fixed to hear the case on the formal petition, before someone in New York claiming to represent Mrs. Hassel, the petitioner, had applied for a reopening of the finding of no jurisdiction by the New York Commission.
Petitioner in that posture of affairs advised the New York Commission of the New Jersey proceeding, and asked that the New York proceeding be stayed "pending the trial of her case in New Jersey, and then after and when we receive compensation over there, as I understand the law in this State, Mrs. Hassel can still come in and get the deficiency claim from the Compensation Bureau here," and this request was duly granted.