Dunseath v. Starrett Brothers & Eken, Inc.

263 A.D. 837, 31 N.Y.S.2d 706, 1941 N.Y. App. Div. LEXIS 5200

Opinion

Action to recover damages for the death of plaintiff’s intestate who was killed while riding as a passenger in an automobile on his way to work for the defendant in the State of Florida. Judgment entered on the verdict of a jury in favor of the plaintiff reversed on the law, with costs, and the complaint dismissed on the law, with costs. The evidence establishes that the employer was bound by contract to furnish transportation. The decedent and Dennis, the owner and operator of the automobile, were fellow servants; hence the ease is one for compensation, and the employer is not liable in negligence. (Van Gee v. Korts, 252 N. Y. 241, 244, 245.) Carswell, Adel, Taylor and Close, JJ., concur; Lazansky, P. J., concurs in result, being of opinion that Dennis was an independent contractor.