210 A.D. 441 | N.Y. App. Div. | 1924
The plaintiff, respondent, has recovered a judgment for $1,302.10 against defendant De Raffele, appellant, for injuries sustained through the personal negligence of said defendant as found by the jury. On November 15, 1922, plaintiff was riding in an automobile operated by defendant, appellant, in Mt. Vernon, N. Y., and the vehicle was in collision with another automobile belonging to defendant Benedetto, Sr., and operated by defendant Benedetto, Jr. Plaintiff sued appellant and the two Benedettos. On the trial before the county judge the complaint was dismissed as to Benedetto, Sr., the jury found a verdict in favor of Benedetto, Jr., and against defendant, appellant, De Raffele.
For a separate defense the said defendant pleaded that at the time of the accident plaintiff was in his employ as a bricklayer, and that the accident arose out of such employment. Defendant, therefore, alleged that plaintiff must seek compensation under the Workmen’s Compensation Law.
The learned county judge charged the jury as matter of law that at the time of the accident plaintiff was not in the employ of defendant De Raffele and that he was not entitled to compensation under the Workmen’s Compensation Law. Defendant asked the court to submit the question to the jury and the court refused, defendant excepting.
The only question presented upon this appeal is the correctness of the ruling of the learned county judge that as matter of law the plaintiff was not in the employ of defendant, appellant, at the time of the accident.
There was no agreement between plaintiff and his employer that plaintiff should be entitled to transportation to and from his work. The mere ipse dixit of the defendant that plaintiff’s pay began at the time he left his home to go to work is not supported by any evidence in the case. It is the conclusion of the
The judgment and order of the County Court of Westchester county should be affirmed, with costs.
Present — Kelly, P. J., Rich, Jaycox, Kelby and Young, JJ.
Judgment and order of the County Court of Westchester county unanimously affirmed, with costs.