The opinion
FRANK, Circuit Judge
(dissenting).
1.' My colleagues’ discussion of the “validity” of plaintiff’s “waiver” of .his “federal remedies” I shall consider later. For I think that, .on analysis of my colleagues’ opinion, that discussion of “waiver” proves irrelevant-to their ultimate conclusion. .That conclusion, boiled down, comes to this: , .
(1) From the time when plaintiff’s lawyer participated in the State Board’s proceedings, his knowledge of the-nature of those proceedings must be imputed to plaintiff.
(2) Therefore, from that time on, plaintiff- was in this position: He impliedly agreed to accept, in lieu of his claim under the federal statutes, whatever the Board had already awarded and subsequently would award him as full payment due him from defendant.
(3) Before and after his lawyer’s -participation, plaintiff received partial awards from the Board.
(4) His agreement, plus payment by defendant of a substantial portion of those partial awards, constituted a release or “full compromise” of whatever he might otherwise have recovered by suit under the federal statutes, and thus constituted a complete defense to plaintiff's present suit.
(5) It is consequently immaterial that the Board has never determined, or purported to determine, the full amount defendant should pay plaintiff.
Points (4) and (5) are novel doctrine. No precedents support them. 2 Undoubtedly, an employee, like plaintiff, can effectively, for a consideration, release his rights under the federal statutes (although the Supreme Court, construing § 5 of F.E. L.A., requires that such a release be most carefully scrutinized). 3 In the Supreme *981 Court case which my colleagues cite, 4 the employee gave a release for a sum which represented the full amount,the parties had agreed upon — not a part payment with an understanding that there would be further payments of amounts to be subsequently determined on the basis of facts not yet ascertainable. I assume, arguendo, that a release would be good if the parties agreed upon the full amount, the employer made a part payment, and payment of the balance was practically assured. 5 I also assume that it would suffice if (1) the parties agreed that a designated third person should determine the full amount to be paid by the employer for the release, (2) the third person did so determine, and (3) that payment was assured. Suppose, however, the third person announced: “I have determined that the employer shall pay the employee $2,000, in weekly instalments of $25.00, but I have not yet determined whether, or how much, more shall be paid to bring about full payment, and I shall not be able to do so until, after a sufficient lapse of time, I can ascertain the extent of the employee’s disability.” I think that, in such circumstances, there would be no release or “full compromise” which the employer, if sued pursuant to the federal statutes, could effectively set up as a complete defense. Payment or award of the amount partly determined would yield but a partial defense, i. e., a defense of a part payment to be deducted from the sum which the court might find owing to plaintiff. That here the third person happens to be an official State entity is of no moment, as I shall try to show later. 6
Although defendant so pleaded and argued the case, my colleagues object to considering it in terms of “accord and satisfaction,” despite the fact that this court has thus considered a similar case, 7 and that the highest court of New York has done likewise. 8 But I shall not quibble about terminology. I accept my colleagues’ use of the phrase “full compromise” and their suggestion (borrowed from Corbin) that “there may be a compromise furnishing an agreed-upon substitute for performance, although generally it may be reasonably clear that the parties intend a discharge ‘only when the compromise performance is rendered.’ ” For, as my colleagues in effect concede, this revised terminology still calls, in a case like this, 9 for what heretofore has been labeled “satisfaction,” i. e., actual performance of the “agreed-upon substitute.” In fact, the defendant here has. not “performed” the latest partial award, for, as the trial judge found, defendant made no payments pursuant to that award after June 1948. But I pass that point, since I shall assume, arguendo, that, on the facts here, an award may be regarded as equal to the payment thereof. 10 . But the “agreed-upon substi tute” here, I think, must be, at a minimum, a Board award or awards of the amount the Board considers payment in full, i. e., what the New York courts call a “final award.” If then we adopt the revised terminology, it is still necessary that defendant prove at least that the Board had made a “final” award — i. e., had reached and announced the conclusion that defendant need pay nothing beyond the payments *982 named in the award — since otherwise there could be no “full compromise.” As that essential element is lacking here, I do not agree that plaintiff has released his right to maintain his suit.
It is clear from the record facts that the Board never did determine that it had awarded all that was due plaintiff. I think the record does not support my colleagues’ statement that “the end of state compensation was apparently approaching”; 11 surely such a fact should not rest on allegations in defendant’s affidavit but denied in plaintiff’s, or be surmised as a basis of a summary judgment. 12 Without doubt, the Board’s hearings were never finally concluded. My colleagues’ statement that, on March 24, 1948, the Board “again found that compensation had been paid in full” is mistaken; for the Board’s records, in evidence here, state that the compensation previously awarded had been paid to that date but that the weekly payments were ordered to be continued as per award.” From time to time, as awards were made, the Board’s orders “continued” the case. According to the record on this appeal, the Board itself defined “continued” to mean “that there may be further disability and you will be given another hearing to determine the extent of this disability, if any.” The undisputed record evidence discloses that, if a full award had been made, the entry would have been “closed,” which, according to the Board’s definition, “means that the award is in full settlement of the claim/’ 13 The Board never ordered plaintiff’s case “closed” in that manner. Its last entry was “closed without prejudice”; it is conceded by defendant that that entry meant merely a suspension of the case by the Board, with the right, on plaintiff’s part, to reopen it to apply for further awards. We do not know what further amount the Board (if its proceedings had not been thus suspended) would have finally awarded. For all we know, it might have been several thousand dollars additional. Defendant, indeed, maintains that, because of that very suspension, plaintiff may be able to obtain further awards— something he could not do if the Board had already made a full, final, award. Moreover, defendant asserted in its pleadings, and on the motion for summary judgment, and in its briefs on this appeal, that it stands ready to pay all further Board awards; thus defendant plainly does not maintain that the Board has ever concluded that it would not grant more.
The facts, then, are as follows: After a series of partial awards — all of which except the last were paid — but before the Board made an award which it deemed “in full settlement of the claim,” plaintiff brought his suit. For reasons above stated, I think those facts do not add up to a release or full settlement.
2. The discussion of “waiver” and of the Board’s “jurisdiction” serves, I think, only to confuse the real issue — that of release or full compromise. The Supreme Court has held that a remedy under a state compensation statute cannot validly be substituted for the federal statutory remedies. 14 This ruling a state cannot circumvent by a statute — such as § 113 of the New York Workmen’s Compensation Law — expressly providing for a “waiver” of lack of jurisdiction. It would require new federal legislation to validate such a waiver, i. e., to bar an employee from maintaining suit merely because he agreed to abide by whatever the state Board might later award him. Absent such a statute, something more than a “waiver” of lack of jurisdiction is needed — something that measures up to a release or full compromise.
I am not saying that the State’s legal rules (statutory or otherwise) concerning releases, compromises, or accords and satisfactions do not apply to plaintiff’s rights, under the federal statutes. 15 Consequent *983 ly, I would go along with my colleagues’ decision, if the New York courts had held that § 113 of the New York statute means that a release, or full compromise, or accord and satisfaction of a claim like plaintiff’s arises from (1) an agreement (express or implied) to abide by the Board’s awards, together with (2) the Board’s issuance of partial awards. 16 But I think those courts have not so held.
Whether the amendment to § 113, made in 1922, was intended to deal with the subject of release or discharge or compromise is highly doubtful. The language of the •amendment is that of “waiver” only. Before the amendment, it had been indicated, in Matter of Doey v. Clarence P. Howland Co., 1918, 224 N.Y. 30, 35 , 120 N.E. 53 , that the state had not empowered the Board to act except in intra-state cases. So the purpose of the amendment seems to have been merely this: If the parties request, the Board has the state’s permission to act in maritime and interstate cases; the legal effect of such action was left to the courts. With that in mind, I turn to the New York decisions cited by my colleagues.
Two such decisions were rendered in cases where, on the facts, the amendment of § 113 did not apply. In Brassel v. Electric Welding Co., 239 N.Y. 78 , 145 N.E. 745, 746 , the Board had made a full, final, award, for a short period of disability, and the employer had paid it in full before the employee sued. The court held that these facts precluded his suit. The court said (per Cardozo, J.) : “The question is not whether the award has the effect of a binding adjudication. We may assume that it is void, and that, at least while unpaid, it might have been set aside or disregarded. Matter of Doey v. Clarence P. Howland Co., Inc., 224 N.Y. 30 , 120 N.E. 53 . The question is whether a right of action has survived the collection of the award and the retention of the proceeds.” The court went on to say that “The transaction thus resulted in an accord and satisfaction. So viewed, its efficacy is independent of the jurisdiction of the board to coerce unwilling parties.” In Larscy v. T. Hogan & Sons, 239 N.Y. 298 , 146 N.E. 430, 431 , the parties had agreed that compensation was to be in accordance with the state Compensation Law and as might be awarded by the Board. The Board had made no award. However, the employer had made a part payment and was willing to pay the balance, but the employee had refused to receive it, and had brought suit. The court held the suit might be maintained. It said that the New York statute was inapplicable, and that “The agreement, as part of the procedure under that law, was void, unless vitality can be preserved to it under common-law rules governing contracts. * * * The agreement may have amounted to an accord, but payment only would amount to a satisfaction.” The court distinguished its Brassel decision, supra, on the ground that there “The full amount of' the award was paid and accepted”, so that “even though the award were void, yet the acceptance of the * * * award in full payment” was “an accord and satisfaction.” In Fitzgerald v. Harbor Lighterage Co., 244 N.Y. 132 , 155 N.E. 74, 75 , there had been a submission to the Board; it had made two partial awards, and the case had been placed “on the final adjustment calendar”, when the employee brought suit. The court held he could maintain it. It referred to the Brassel case as holding that “a final award when accepted by the claimant is an accord and satisfaction”; it said that, “On the other hand, we held in Larscy v. T. Hogan & Sons, 239 N.Y. 298 , 146 N.E. 430 , that acceptance of an award not final is at most an accord, and not a satisfaction, with the result that the cause of action * * * continues unextin-guished”. 17 Turning to amended § 113, the court said that, because of lack of proof of waiver, “We find it unnecessary to determine whether * * * this section would supersede the remedy in admiralty.” Since Fitzgerald, the highest New York court has never considered § 113.
*984 Its three decisions teach the following: A Board award plus receipt of the awarded payments have no effect except as they create a common law release or discharge; aside from amended § 113, nothing less than a final award 18 will result in a common law discharge; whether, under amended § 113, a waiver, coupled with partial awards and even with their payment, has the effect of a common law release or discharge is a question the highest New York court has not answered.
Our court has twice heretofore interpreted the foregoing New York decisions. In Wyatt v. New York & O. W. Ry. Co., 2 Cir., 45 F.2d 705, 708 , citing those three decisions, we said: “If the accord had been executed to the point of procuring a final award by the board, we will not now say that that might not have been enough to discharge the original claim and to substitute therefor rights under the award. Perhaps such an intention might fairly be found in the agreement at bar; but no performance short of this was enough.” In Hoffman v. N. Y., N. H. & H. R. Co., 2 Cir., 74 F.2d 227, 231 , citing the Larscy case we said: “The court held that partial payments under an award * * * where the commissioner had no jurisdiction were not a bar to a subsequent action to recover damages for personal injuries.”
The decisions of the lower New York courts sustain discharges in such cases only when there have been final awards. In Brancoleone v. Northern Stevedoring Co., Inc., 224 App.Div. 562 , 231 N.Y.S. 489, 491 (1st Dept.) after partial Board awards, the employee brought suit. The court said: “We think the answer to the question depends in this instance on whether or not there was a final award.” Holding that there was not, and citing the Fitzgerald case, the court decided that the employee could maintain suit. The Appellate Division, Third Department, has decided five cases, each involving an effort by an employer, after the lapse of many years, to discontinue, because of lack of Board jurisdiction, payments pursuant to a final award of death benefits to an employee’s widow. In Kane v. Morse Dry Dock and Repair Co., 250 App.Div. 888 , 295 N.Y.S. 118, 119 (3d Dept.), upon the employee’s death, there had been a final Board award in 1919 to the widow. After paying the amounts awarded for eighteen years, the employer sought to discontinue payments for want of Board jurisdiction. The court, citing § 113 and the Fitzgerald case, held that the employer had “waived his right to question the jurisdiction * * In Haglund v. Morse Dry Dock & Repair Co., 255 App.Div. 895 , 7 N.Y.S.2d 465, 466 (3d Dept.), again, upon the employee’s death, the Board had made an award of periodical payments of death benefits to the widow. On these facts no further award could have been made, so that the award was final. After paying for about seventeen years, the employer discontinued payments and (to quote the court) “made application to the board to set aside the award and dismiss the claim,” 19 on the sole ground of lack of Board jurisdiction. The Board’s decision denying this relief was affirmed by the court. It cited the Kane case, supra, and referred to § 113, but seems to have rested its decision on “equitable estoppel”; it said that “by the lapse of time the condition of the dependent has changed and all rights and remedies other than herein have been prejudiced and impaired thereby.” The same court, at the same time, similarly decided Agne v. Morse Dry Dock & Repair Co., 255 App.Div. 897 , 7 N.Y.S.2d 467 , saying that “The same questions are involved”. It also then decided Turner v. Morse Dry Dock & Repair Co., 255 App.Div. 896 , 7 N.Y.S.2d 456 , where the question again was the same. In Ahern v. South Buffalo Ry. Co., 277 App.Div. 1067 , 100 N.Y.S.2d 639 (3d Dept.), the facts are so inadequately stated, in the one paragraph opinion, that it is difficult to tell just what they were, but perhaps they were the same as in the preceding cases, although there may have been a partial award only. • The *985 court cited the Haglund case, and spoke of the employer’s “gross laches and conduct prejudicial to the widow.”
Thus, in all the cases decided by the lower New York courts (with the possible exception of Ahern) there was a final award, i. e., an award of all that the employer was to pay, with nothing more to be awarded. The latest pronouncement is a dictum in Meaney v. Keating, Sup., 102 N.Y.S.2d 514, 519 (Supreme Court, Trial Term, 1951) : “It is only the acceptance of a non-final award, made without jurisdiction, which is deemed an accord but not a satisfaction,” citing the Fitzgerald anil Larscy cases. I think, therefore, that it cannot be said that the New York rule is that, under amended § 113, even payments and receipt of payments, pursuant to partial awards, constitute a discharge of plaintiff’s claim. Consequently, I would reverse the summary judgment for defendant, and remand the case for trial.
. See discussion of New York decisions, infra.
. Duncan v. Thompson, 315 U.S. 1 , 62 S.Ct. 422 , 86 L.Ed. 575 .
The courts have laxly applied to employees’ releases of claims for personal injuries the doctrines applicable to releases generally, i.e., the courts have been more ready to relieve employees from their releases. See Williston, Contracts (Rev. ed.) § 1551, and cases cited in Ricketts v. Pennsylvania R. Co., 2 Cir., 153 F.2d 757 , 766 note 30.
. Callen v. Pennsylvania R. Co., 332 U.S. 625 , 68 S.Ct. 296 , 92 L.Ed. 242 .
. Perhaps, in any event, suit could not be maintained until the employer defaulted in making payment of the agreed balance. See, however, decisions of the highest New York Court, discussed infra. (7/. N. Y. Personal Property Law, § 83-a, McK.Consol.Laws, c. 41, not here applicable.
. See discussion of the New York decisions, infra.
. Wyatt v. New York, O. & W. R. Co., 2 Cir., 45 F.2d 705 .
. Larscy v. T. Hogan & Sons, 239 N.Y. 298, 301-302 , 146 N.E. 430 ; Fitzgerald v. Harbor Lighterage Co., 244 N.Y. 132, 135 , 155 N.E. 74 .
. My colleagues concede in effect that there is a strong presumption, not here overcome, that the parties intended that performance should be a requisite of the discharge. See Wyatt v. N. Y., O. & W. R. Co., 2 Cir., 45 F.2d 705 .
. See, however, the New York cases discussed infra, some of which seen to hold that payment is essential.
. This statement derives from an affidavit filed by defendant; there it was set forth as a conclusion from the alleged fact that “plaintiff has been regularly employed for years since his recovery from this accident.” This was denied in an answering affidavit filed by defendant.
. See preceding footnote.
. Emphasis added.
. New York Central R. Co. v. Winfield, 244 U.S. 147 , 37 S.Ct. 546 , 61 L.Ed. 1045 .
. Cf. Callen v. Pennsylvania R. Co., 332 U.S. 625 , 68 S.Ct. 296 , 92 L.Ed. 242 .
. Or, perhaps, payment of such partial awards.
. Emphasis added.
. Plus, perhaps, the claimant’s acceptance of payment.
. Emphasis added,