Summary
In Yoshi Ogino v. Black, 304 N.Y. 872, 109 N.E.2d 884 (1952), aff'g 278 App.Div. 146, 104 N.Y.S.2d 82 (1st Dept. 1951), the appellate division reversed a decision striking a defense based on the exclusivity of North Carolina workmen's compensation remedies because it found that the North Carolina Workmen's Compensation Board would not necessarily be bound by a decision of the New York Board that plaintiff's injury had not occurred in the course of his employment.
Summary of this case from O'Connor v. Lee-Hy Paving Corp.Opinion
Argued October 16, 1952
Decided December 5, 1952
Appeal from the Supreme Court, Appellate Division, First Department, HECHT, J.
Robert Aronstein and William B. Aronstein for appellant-respondent.
John F.X. Finn and Norman C. Mendes for respondent-appellant.
So much of the order of the Appellate Division as affirmed the Special Term orders appealed from, to the extent that they strike out the first two separate affirmative defenses in the amended answer, is affirmed, without costs, and the first, third and fourth certified questions are answered in kthe affirmative. To answer the second certified question would determine the very issue which the Appellate Division decided should "await an examination of North Carolina law at such time as the merits of this defense may be considered." ( 278 App. Div. 146, 150.) We have no such advisory jurisdiction ( Mary Lincoln Candies v. Department of Labor of State of N.Y., 289 N.Y. 262; Schenck v. Barnes, 156 N.Y. 316; Coatsworth v. Lehigh Valley R.R. Co., 156 N.Y. 451); indeed, we refrain at this time from indicating any view as to the sufficiency of defendant's third affirmative defense. Moreover, the reservation of that issue rests on a proper exercise of discretion (Rules Civ. Prac., rule 103), and thus no decisive question of law is presented for review ( Braunworth v. Braunworth, 285 N.Y. 151; Mencher v. Chesley, 297 N.Y. 94).
Accordingly, the second certified question is not answered, and the appeal from that part of the order of the Appellate Division which reversed in part the two orders of Special Term and reinstated the third affirmative defense in the amended answer, is dismissed, without costs.
On the appeal of appellant-respondent: The order should be affirmed, without costs; the first, third and fourth questions certified are answered in the affirmative.
On the appeal of respondent-appellant: The appeal should be dismissed, without costs; the second question certified is not answered.
LOUGHRAN, Ch. J., LEWIS, CONWAY, DESMOND, DYE, FULD and FROESSEL, JJ., concur.
On appeal of appellant-respondent: Order affirmed, etc.
On appeal of respondent-appellant: Appeal dismissed, etc.