Pettersen v. Henry DuBois Sons Co.

248 A.D. 745

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 15, 1936
• Docket: Appeal No. 1; Appeal No. 2
• Status: Published

Opinion

Action to recover for the death of plaintiff’s intestate, a bargeman, who was killed while flushing the deck of a scow that was being towed by a tugboat. [First Appeal.] Appeal by the defendant from an order, as resettled, granting plaintiff’s motion and striking out the first, third and fourth paragraphs and the second, third and fifth affirmative defenses of the amended answer, with leave to plead over. Order modified by striking out the provisions thereof granting plaintiff’s motion as to the third and fifth affirmative defenses and denying the motion of the plaintiff to strike them out, and as so modified affirmed, without costs. In our opinion, a determination as to these defenses, which plead assumption of risk and the efficacy of the compensation act, should await the trial of the issues and the proof adduced with respect thereto. [Second Appeal.] Order granting in part plaintiff’s motion for an examination before trial affirmed, with ten dollars costs and disbursements; the examination to proceed on five days’ notice. No opinion. Lazansky, P. J., Young, Hagarty, Davis and Johnston, JJ., concur.