Campoccia v. Panama Railroad

110 Misc. 116

• Court: New York Supreme Court
• Decided: January 15, 1920
• Status: Published

Opinion

Davis, J.

The defendant John T. Clark So Son makes this motion for judgment on the pleadings. The action is for damages for personal injuries suffered by plaintiff while in the employ of John T. Clark & Son, as a longshoreman, unloading the steamship Panama on the 11th of February, 1918. The complaint so alleges. The complaint does not allege that the employer has failed to secure the payment of compensation to the plaintiff. Having alleged that he was injured while he was engaged in longshore work, the plaintiff places himself within the Workmen’s Compensation Law, group 10, section 2 of article 2. He was injured while engaged in a hazardous employment, and his remedy is exclusively under that law, unless he can show that the defendant employer has failed to secure payment of compensation for him and his dependents, as provided in the Compensation Law. This failure to secure compensation is an essential part of his cause of action and must be pleaded. The failure so to plead requires the granting of this motion. Nulle v. Hardman, Peck & Co., 185 App. Div. 351. Plaintiff’s remedy is exclusively under the Workmen’s Compensation Law, section 11, article 2. Nilsen v. American Bridge Co., 221 N. Y. 12, cited by plaintiff, is not in point, as the complaint in that case does not allege that plaintiff was engaged as an employee in a hazardous employment at the time the injury was sustained. Motion granted, with leave to the plaintiff to serve an amended complaint within ten days after service of notice of entry of an order hereon; ten dollars costs.

Motion granted, with ten dollars costs.