Fener v. Chapman

274 A.D. 776, 81 N.Y.S.2d 142, 1948 N.Y. App. Div. LEXIS 3274

Opinion

In Mazzaredo v. Levine (ante, p. 122, decided herewith) the court was unanimous that subdivision 6 of section 29 of the Workmen’s Compensation Law is not a bar to a coemployee who is suing for assault. On the authority of that case, the order Appealed from should be reversed, with $20 costs and disbursements to the appellant, and the plaintiff-appellant’s motion granted to strike out the “ First Separate and Distinct Defense” contained in paragraphs 5th to 8th, inclusive, of defendant’s answer, which alleges that the assault was committed by a fellow servant and that the remedy by workmen’s compensation is therefore exclusive under subdivision 6 of section 29 of the Workmen’s Compensation Law. Order unanimously reversed, with $20 costs and disbursements to the appellant, and the motion granted. Present — Peck, P. J., Glennon, Dore, Van Voorhis and Shientag, JJ.