8 A.D.2d 585 | N.Y. App. Div. | 1959
Order reversed, with $10 costs and disbursements, and motion denied, with $10 costs. Memorandum: The motion to strike out the affirmative defense that the accident arose out of and in the course of the employment of the plaintiff by the defendant-appellant Byroads and that a proceeding under the Workmen’s Compensation Law was the plaintiff’s exclusive remedy, should have been denied. The motion was made on the ground that the defense was barred by a prior adjudication by the Workmen’s Compensation Board to the effect that the accident had not occurred in the course of the plaintiff’s employment by the defendant. The motion purported to have been made under rule 109 of the Rules of Civil Practice but that rule deals only with a defense which is insufficient in law on its face and the defense pleaded in this case was not insufficient on its face. Neither will a motion lie to strike out an affirmative defense on the ground of res judicata under rule 107 or rule 110; those rules refer only to the dismissal of a complaint or counterclaim on the ground of res judicata (Post v. Lyford, 285 App. Div. 101). However, the motion may be regarded as one to strike out the defense as sham under rule 103 (Ogino v. Black, 278 App. Div. 146, affd. 304 N. Y. 872). But we find that questions of fact are involved in the determination of the validity of the plaintiff’s claim of res judicata, which cannot be disposed