Not overruled or negatively treated on appealinfoCoverage
Appellate Division of the Supreme Court of New York, Second DepartmentNov 4, 1968
31 A.D.2d 536 (N.Y. App. Div. 1968)

November 4, 1968

Judgment of the Supreme Court, Queens County, entered November 10, 1966, affirmed, with costs. In this personal injury negligence action by an employee against her employers, plaintiff is not entitled to rely upon the provisions of section 5 of the Employers' Liability Law which, in an action arising out of the course of employment, make contributory negligence a defense to be pleaded and proved by the defendants. Not only does plaintiff's complaint fail to allege any statutory violation, but she has not complied with section 3 of the statute, which mandates notice to the employer of the time, place and cause of injury. Plaintiff is bound by the usual rule, as charged, that she must plead and prove her freedom from contributory negligence. Christ, Acting P.J., Brennan, Benjamin, Munder and Martuscello, JJ., concur.