Carriero v. Iovino

281 A.D. 1052, 121 N.Y.S.2d 127, 1953 N.Y. App. Div. LEXIS 4302

Opinion

— -Appeal from an order of the Supreme Court, Saratoga Special Term, which denied a motion to dismiss the complaint herein, under rule 107 of the Rules of Civil Practice, on the ground the court had no jurisdiction of the subject matter of the action. The complaint is laid in negligence arising out of an automobile accident. Defendant’s contention on the motion was that both parties were employees of the General Electric Company, engaged in the course of their employment at the time the accident happened, and that plaintiff’s sole remedy was under the Workmen’s Compensation Law. The Special Term held that an issue of fact was presented as to whether plaintiff was acting within the scope of his employment at the time the accident occurred. Order unanimously affirmed, with $10 costs. Present — • Foster, P. J., Brewster, Coon, Halpern and Imrie. JJ.