Baeringer v. City of New York

Full title: LOUIS BAERINGER, Respondent, v. THE CITY OF NEW YORK, Appellant

Court: Appellate Division of the Supreme Court of New York, First Department

Date published: Feb 1, 1925

212 App. Div. 857 (N.Y. App. Div. 1925)

Opinion

February, 1925.

Appeal from Supreme Court, New York County.

Present — Clarke, P.J., Merrell, Finch, Martin and Burr, JJ. Judgment and order reversed and new trial ordered, with costs to appellant to abide the event, with leave to defendant to serve an amended answer.

PER CURIAM:

The judgment and order appealed from should be reversed and a new trial ordered, with costs to the appellant to abide the event, with leave to defendant to serve an amended answer alleging that plaintiff elected to receive compensation under the Workmen's Compensation Law. If such be the fact, this action cannot be maintained. ( Lester v. Otis Elevator Co., 169 App. Div. 613; Miller v. N.Y. Railways Co., 171 id. 316, 319; Pavia v. Petroleum Iron Works Co., 178 id. 345; Travelers Ins. Co. v. Brass Goods Mfg. Co., 239 N.Y. 273.)