281 A.D. 910 | N.Y. App. Div. | 1953
Defendant appeals from an order denying his motion to dismiss the complaint pursuant to subdivision 1 of rule 107 of the Rules of Civil Practice, and from an order granting plaintiff’s motion to examine defendant before trial. Orders reversed on the law, with one bill of $10 costs and disbursements, and motion to dismiss; the complaint granted, with $10 costs, and motion to examine before trial denied, without costs. Respondent seeks damages for personal injuries sustained when a freight elevator in which he was riding dropped in a building owned by appellant. It is undisputed that the latter is a partner of the firm which employed respondent, that the firm’s place of business was in the building, and that the firm procured compensation insurance for its employees, including respondent. Appellant’s ownership of the building did not alter the relationship of employer which he had towards respondent. Because compensation insurance has been provided, the respondent has no right of action at law against appellant by reason of his negligence in the maintenance of the freight elevator. (Williams v. Bartshorn, 296 N. Y. 49.) Carswell, Acting P. J., Wenzel, MaeCrate, Schmidt and Beldock, JJ., concur.