Opinion
November 22, 1961
Present — Bergan, P.J., Coon, Gibson, Herlihy and Reynolds, JJ.
Appeals from orders of a Special Term, Supreme Court, Broome County. In these two actions for death caused in a motor vehicle accident in the course of decedents' employment, appellant International Harvester Company is sued as a third party. The complaints allege as a theory of the liability against International that the truck owned by decedents' employer in which the decedents were killed was mechanically defective; that International inspected it in pursuance of statute and failed to issue to the owner and to send to the Motor Vehicle Bureau a certificate of mechanical rejection; but on the contrary, later issued a certificate of proper mechanical condition which made it possible to operate the vehicle on the public highways. We are not now concerned with the sufficiency of this pleading. The issue on this appeal is the sufficiency of an affirmative defense by International pleading that the benefits under the Workmen's Compensation Law are the exclusive remedy available to plaintiffs. This defense has been stricken out; and we agree with the court at Special Term that it is not available to the defendant who was not the employer of the decedents. It is argued by this third party by a direct quotation of the words of the constitutional provision which states compensation "shall be exclusive of all other rights and remedies" (N Y Const., art. I, § 18) and by the quotation of a phrase from the opinion in Shanahan v. Monarch Eng. Co. ( 219 N.Y. 469, 476) that no action exists against a negligent third party for death or injury arising out of employment. We had supposed this question was very well settled in New York the other way, not only by statute (Workmen's Compensation Law, § 29, subd. 1), which expressly allows such an action to be maintained even though the injured employee has taken compensation; but by the well-settled decisional law in this State, e.g., Matter of Zirpola v. T. E. Casselman, Inc. ( 237 N.Y. 367); McFall v. Compagnie Maritime Belge ( 304 N.Y. 314); Westchester Lighting Co. v. Westchester County Small Estates Corp. ( 278 N.Y. 175); Caulfield v. Elmhurst Contr. Co. ( 268 App. Div. 661, affd. 294 N.Y. 803). The allegations in the affirmative defenses that each decedent was injured and killed through the negligence of the other fellow employee are immaterial and constitute no defense, if, as the complaint alleges, the third party was also negligent. Orders unanimously affirmed, with $10 costs.