263 A.D. 1042 | N.Y. App. Div. | 1942
This is an appeal by defendant Carr from an order granting plaintiff’s motion to strike out paragraphs third, fourth, .fifth and sixth of defendant’s answer, pursuant to the provisions of rule 103 of the Rules of Civil Practice. The separate defense so stricken from the answer stated, in substance, that defendant was the president of the board of trustees of a school district, of which plaintiff was a teacher-employee; that the school district elected to bring its employees under coverage of the Workmen’s Compensation Law and that at the time of the accident the plaintiff was riding as a passenger in her capacity of teacher and employee of said school district and in the course of her employment, and further, that plaintiff and defendant were coemployees. The Special Term rendered its order and decision striking out the separate defense on the ground that defendant’s liability is statutory (Vehicle and Traffic Law, § 59), and not dependent upon any wrongdoing or negligence pursuant to the provisions of section 29 of the Workmen’s Compensation Law. Clearly, the defendant, the owner of the automobile in which plaintiff was riding, was not a coemployee. He was not present in the automobile at the time of the accident. The finding of the Special Term that plaintiff’s injuries were not caused by negligence or wrongdoing of a coemployee is amply supported by the evidence and the separate defense was properly stricken from the answer. The order appealed from should be affirmed. Order unanimously affirmed, with twenty-five dollars costs and disbursements. Present - — - Hill, P. J., Bliss, Heffernan, Schenck and Foster, JJ. [177 Misc. 706.]