Opinion
March 24, 1958
In a consolidated action by two motor vehicle passengers against its owner to recover damages for personal injuries, each answer contains two separate affirmative defenses alleging that section 29 Work. Comp. of the Workmen's Compensation Law is a bar to the action because the operator of the motor vehicle was a fellow employee of the injured passengers. The appeal is from an order striking out those defenses as insufficient (Rules Civ. Prac., rule 109). Order affirmed, with $10 costs and disbursements. Not only is section 29 Work. Comp. of the Workmen's Compensation Law insufficient to preclude recovery, but there is no allegation in the defenses that the passengers and the operator were engaged in the course of the business of their common employer at the time of the happening of the accident. Wenzel, Acting P.J., Murphy, Ughetta, Hallinan and Kleinfeld, JJ., concur.