Passzehl v. Metropolitan Distributors, Inc.

Appellate Division of the Supreme Court of New York

Passzehl v. Metropolitan Distributors, Inc.

262 A.D. 778, 28 N.Y.S.2d 254, 1941 N.Y. App. Div. LEXIS 5819

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 26, 1941

StatusPublished

Cited by2 cases

This text of 262 A.D. 778 (Passzehl v. Metropolitan Distributors, Inc.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Passzehl v. Metropolitan Distributors, Inc., 262 A.D. 778, 28 N.Y.S.2d 254, 1941 N.Y. App. Div. LEXIS 5819 (N.Y. Ct. App. 1941).

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Opinion

Action brought to recover damages for personal injuries sustained by plaintiff when a truck rented by plaintiff’s employer from the defendant rolled away from a loading platform on which plaintiff was working, as a result of which plaintiff fell from the platform. Judgment in favor of plaintiff reversed on the law and a new trial granted, with costs to appellant to abide the event. The trial court erred in refusing to charge the jury that the plaintiff could not recover if it were found that the plaintiff’s fellow-employee, the driver of the truck, was negligent and that Ms negligence was a concurring proximate cause of the accident. (Workmen’s Compensation Law, § 29, subd. 6, Laws of 1937, chap. 684; Ætna Cas. & Surety Co. v. Gronholz, 261 App. Div. 961; motion for leave to appeal denied, 285 N. Y. 855, April 24, 1941.) It was conceded that plaintiff had been awarded compensation. His employer, a self-insurer, therefore, had a lien on the proceeds of the recovery under subdivision 1 of section 29 of the Workmen’s Compensation Law. To permit the employer to recoup the compensation payments in spite of concurrent negligence on the part of its employee would enable it to profit by its own wrong. Lazansky, P. J., Hagarty, Johnston, Taylor and Close, JJ., concur.

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Action brought to recover damages for personal injuries sustained by plaintiff when a truck rented by plaintiff’s employer from the defendant rolled away from a loading platform on which plaintiff was working, as a result of which plaintiff fell from the platform. Judgment in favor of plaintiff reversed on the law and a new trial granted, with costs to appellant to abide the event. The trial court erred in refusing to charge the jury that the plaintiff could not recover if it were found that the plaintiff’s fellow-employee, the driver of the truck, was negligent and that Ms negligence was a concurring proximate cause of the accident. (Workmen’s Compensation Law, § 29, subd. 6, Laws of 1937, chap. 684; Ætna Cas. & Surety Co. v. Gronholz, 261 App. Div. 961; motion for leave to appeal denied, 285 N. Y. 855, April 24, 1941.) It was conceded that plaintiff had been awarded compensation. His employer, a self-insurer, therefore, had a lien on the proceeds of the recovery under subdivision 1 of section 29 of the Workmen’s Compensation Law. To permit the employer to recoup the compensation payments in spite of concurrent negligence on the part of its employee would enable it to profit by its own wrong. Lazansky, P. J., Hagarty, Johnston, Taylor and Close, JJ., concur.

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Bluebook (online)

262 A.D. 778, 28 N.Y.S.2d 254, 1941 N.Y. App. Div. LEXIS 5819, Counsel Stack Legal Research, https://law.counselstack.com/opinion/passzehl-v-metropolitan-distributors-inc-nyappdiv-1941.

Opinion

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