Opinion
April 7, 1960
Appeal from the Monroe Special Term.
Present — Williams, P.J., Bastow, Halpern, McClusky and Henry, JJ.
Order unanimously reversed, with $25 costs and disbursements and motion denied, without costs. Memorandum: This case is distinguishable upon the facts from Roberts v. Gagnon ( 1 A.D.2d 297) relied upon by respondent. An examination of the record on appeal in the Roberts case discloses that the moving papers contained a statement that plaintiff had made application for benefits under the Workmen's Compensation Law and was receiving such benefits by reason of the injuries he claimed to have received in the accident. The court at Special Term, in granting the motion to dismiss the complaint therein stated in its decision that "Plaintiff, himself, in this case invoked his remedy, under the Workmen's Compensation Law and received an award. Implicit therein is a determination by the Workmen's Compensation Board that plaintiff received his injuries at the hands of a co-employee, and that they arose out of and in the course of their employment." In the instant case a question of fact is presented upon this issue. (Cf. Carriero v. Iovino, 281 App. Div. 1052.)