Clergy v. Curtiss-Wright Corp. ( 1950 )

That portion of the judgment which dismisses the complaint as against the defendant Curtiss-Wright Corporation reversed on the law and a new trial granted as to said defendant and otherwise the judgment insofar as appealed from is affirmed, with costs to the appellant and respondent Cline to abide the event. Order setting aside the verdict as against defendant Walter W. Cline and granting a new trial as to said defendant affirmed. Order insofar as it dismisses the complaint against the defendant Curtiss-Wright Corporation reversed and a new trial granted as to said defendant, and otherwise order affirmed. Memorandum: We think that the evidence presents a question of fact as to the negligence of the defendant Curtiss-Wright Corporation. The defense that plaintiff’s sole remedy as against Curtiss-Wright Corporation is under the Workmen’s Compensation Law was not pleaded in the answer or tendered upon the trial. That defense was considered for the first time upon the motion of the defendant Curtiss-Wright Corporation to set aside the verdict. The question of whether plaintiff’s injury arose out of or in the course of her employment was not put in issue and we cannot say from the record that the facts and circumstances bearing upon that question were fully developed at the trial. The plaintiff should, at least, have the opportunity to offer any evidence which she may claim is material upon that question. Moreover, counsel for defendant Curtiss-Wright Corporation in his brief and upon oral argument has urged us not to consider the Workmen’s Compensation Law as a defense upon the decision of this appeal. All concur. (The portions of the judgment appealed from and the orders set aside a verdict of a jury in favor of plaintiff insofar as it was against defendant CurtissWright Corp. and defendant Cline, and dismiss the complaint as to CurtissWright Corp. and grant a new trial as to defendant Cline, in an automobile negligence action.) Present — Taylor, P. J., McCurn, Love, Vaughan and Piper, JJ.