Lundeby v. Doty

256 A.D. 1105, 11 N.Y.S.2d 562, 1939 N.Y. App. Div. LEXIS 6305

Opinion

Order, as resettled, denying plaintiff’s motion to strike from the answer the fourth separate defense, reversed on the law, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, on the authority of Van Wormer v. Arnold (255 App. Div. 233). It appears from the pleadings, and is assumed by the parties, that at the time of the accident the plaintiff’s intestate and the defendant were coemployees. The relationship of employer and employee did not exist. The word “ employed,” as used in the fifth paragraph of the complaint, is deemed to mean “ engaged.” It was improper to consider the affidavit submitted by the defendant. On this motion only the pleadings are involved. (Romaneck v. Bauer, 250 App. Div. 734.) Lazansky, P. J., Carswell, Adel, Taylor and Close, JJ., concur.