It is evident from this decision that an independent contractor may also at times be regarded as an employee. In case of doubt as to whether the workman is an independent contractor, compensation insurance should be provided for should it develop that the workman was within the protection of the compensation law, he could, in case of injury, sue for damages, in which event the employer would be deprived of the defenses of contributory negligence, assumed risk and negligence of fellow servants. Although one may be doing the work of an independent contractor and be barred from the benefits of the compensation law, the person for whom he is working is still under the obligation to exercise diligence and care to the end that the independent contractor may not receive injury while in the course of his employment. In the Bargey case (Sec. 11), the deceased workman had just completed an independent contract for repairs upon the building in which the accident happened and at the time of the injury was working by the day. While engaged upon the work, the floor of the employers premises crashed down upon his head, killing him instantly, and, under these circumstances, it would be immaterial whether he was an independent contractor or a casual employee, for in either event the owner of the building would be liable in damages if the injury was due to his negligence. § 24. Employees injured through the negligence of third persons. If a workman entitled to compensation is injured or killed by the negligence of another not in the same employ, he must, or in case of death his dependents, must elect whether to take compensation or pursue his remedy against the third party through whose negligence the injury was occasioned. Rule 51 was adopted by the Commission to regulate the manner in which such election shall be made. Under this rule, if the injured workman elects to take compensation, such election is made by filing a claim for compensation with the Commission containing an assignment of the cause 1 Section 29 Workmen's Compensation Law. 1 of action against such third party to the person liable for the payment of compensation. In an action brought against a third party by the employer or insurance carrier, upon the assignment of the cause of action made by the injured workman, the recovery is limited to the amount of compensation paid the injured workman by the party bringing the suit. In England it has been held that the legitimate costs and expenses of the compensation proceedings may be recovered in addition to the compensation paid, and, doubtless, this rule would also be applied under the New York act. The defendant in such an action may set up the usual defenses in negligence cases including the contributory negligence of the employee and may also show that the compensation was not paid in accordance with the statute.* Where the injured workman or his dependents elect to sue a third party, the employer or insurance carrier is only liable in compensation for the deficiency between the amount recovered against the third party and the compensation provided by the act. Under the rules of the Commission where compensation is to be claimed for a possible deficiency a notice of election to sue the third party must be filed with the Commission together with a claim for compensation, which is held in abeyance by the Commission until the suit is determined. It was decided, however, in the case of Lester vs. Otis Elevator Co., 169 App. Div. 613; 153 N. Y. Supp. 1058, that the injured workman may maintain a suit against the third party to recover damages at common law without filing a notice of election with the Commission. The rules of the Commission, therefore, only apply where claim for compensation is to be made for the deficiency between the amount recovered in the suit and the amount of compensation provided by the act. In England it has been held that suit for damages may be brought against a fellow employee" but such suit cannot be brought under Co., U. S. Fidelity & Guaranty Co. VS. New York Railways Supreme Court App. Term, Jan., 1916; 156 N. Y. Supp. 615. 3 Great Northern R. R. Co. vs. Whitehead, 4 B. W. C. C. 39. Thompson vs. N. E. M. Co., 5 W. C. C. 71. the New York act as the injured workman only has this election of remedies where the injury was caused by a person "not in the same employ." Most of the compensation statutes have a provision in relation to injuries of this character similar to the provisions of Section 29 of the New York act. In the state of Washington the optional remedy of the employee is confined to injuries received "away from the plant" and in the case of Northern Pacific Railway Co. vs. Mary A. Meese, it was decided that the compensation law was the only remedy for an injury received at the plant although it was caused by the negligence of a third party. If compensation is claimed in addition to the amount recovered from the third party, a compromise of the suit brought by the workman or his dependents at an amount less than the compensation provided b ythe act cannot be made except with the written approval of the Commission if the deficiency of compensation is payable from the State Fund, and otherwise with the written approval of the person, association or corporation liable to pay the same. This provision of the act does not, however, prevent a compromise if the workman or his dependents. make no claim for compensation in addition to the amount of the settlement. In a case where the injury was due to a collision between a trolley car and a wagon at a street crossing in which the driver of the wagon signed a release exonerating the railroad company, it was held that such a release did not bar the claim for compensation made by the injured workman, and that the release would not prevent the insurance carrier from prosecuting the assigned claim of the injured workman against the third party. An infant, sui juris may sue a third party under Section 29 without the appointment of a guardian Ad Litem. Since the rules of procedure were adopted by the Commission for proceedings in cases of this character, the 'Smith Dock Co. vs. Readhead, 5 B. W. C. C. 449. 239 U. S. 614; 206 Fed. 222; 211 Fed. 254. 'Matter of Woodward vs. E. W. Conklin & Sons, App. Div. Third Herkey vs. Agar Mfg. Co., 153 |