Gokey v. McDermott

274 A.D. 996 | N.Y. App. Div. | 1948

In an action to'' recover damages for personal injuries allegedly caused by the negligence of defendants, the injured plaintiff moved to implead as a party plaintiff a compensation insurance carrier which had made compensation payments to the plaintiff as a result of his injuries. Defendants, whose answer contained a defense that the injured plaintiff had not commenced his action within six months after the .awarding of compensation, nor within one year after the cause of action accrued, although he had received compensation payments, made a cross motion for judgment on the pleadings, pursuant to rule 112 of the Rules of Civil Practice, contending that on the facts section 29 of the Workmen’s Compensation Law barred any recovery by the injured plaintiff. Plaintiff’s motion was properly granted. (Wilton v. Radish, 267 App. Div. 970; Van der Stegen v. Neuss, Hesslein, & Co., 270 N. Y. 55; Weldon v. United States, 65 F. 2d 748.) The Special Term properly denied defendants’ motion, since the matter which defendants contend entitles them to judgment on the pleadings pursuant to rule 112 does not appear on the face of the complaint sought to be dismissed, and on such a motion defenses contained in the answer cannot be considered. (Lipkind v. Ward, 256 App. Div. 74; Staten Island Edison Corp. v. Maltbie, 270 App. Div. 55, 58.) Order granting plaintiff’s motion to implead an additional party plaintiff, and denying defendants’ cross motion for judgment on the pleadings, affirmed, with $10 costs and disbursements. If plaintiffs have not already served their proposed supplemental summons and amended complaint, they may do so within ten days from the date of the order to be entered hereon. Nolan, P. J., Johnston, Adel, Sneed and Wenzel,

JJ., concur.