Opinion
Argued May 15, 1967
Decided June 15, 1967
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, HENRY M. ZALESKI, J.
Asher Marcus for appellant.
William F. Hanrahan, William Beasley, Jr., and Louis M. Alesi for respondents.
MEMORANDUM. The order of the Appellate Division, affirming a judgment entered on a jury verdict in favor of plaintiffs-respondents Solomon and Keene against defendant-appellant Russo, should be reversed with costs and the complaints dismissed. As the facts are not in issue, only a question of law is presented ( Matter of Martin v. Plaut, 293 N.Y. 617, 618; Matter of Christiansen v. Hill Reproduction Co., 262 App. Div. 379, 380, affd. 287 N.Y. 690). Concededly, the accident at issue occurred while plaintiffs and defendant, who were coemployees, were returning in defendant's car to the vicinity of their regular place of work in Bethpage, Long Island, after "temporarily reporting" at another plant in Calverton, Long Island, also owned by their employer. The employer had previously agreed to compensate any of its employees who drove their own cars to the Calverton plant and, for reasons of their own, plaintiffs and defendant formed a car pool for the journey. Under these circumstances, the accident arose out of an incident of plaintiffs' employment and an action will not lie against defendant, their fellow employee (Workmen's Compensation Law, § 29, subd. 6; see Matter of Newman v. Public Distrs., 282 App. Div. 108 6; Sjostrom v. Sproule, 33 Ill.2d 40, 44; Konopka v. Jackson County Road Comm., 270 Mich. 174, 177; Jensen v. Manning Brown, 63 Wyo. 88, 99-100; Ann.: Workmen's Compensation — Transportation, 97 A.L.R. 555, 556). Nor is it determinative that the plaintiffs were not compensated individually for this particular trip; the important point is that they were all returning from a distant temporary place of work at their employer's expense.
Chief Judge FULD and Judges VAN VOORHIS, BURKE, SCILEPPI and BREITEL concur in memorandum; Judges BERGAN and KEATING dissent and vote to affirm.
Order reversed, with costs in this court and in the Appellate Division, and the complaints dismissed in a memorandum.