Fener v. Chapman , 81 N.Y.S.2d 142 ( 1948 )

In Mazzaredo v. Levine (ante, p. 122, decided herewith) the court was unanimous that subdivision 6 of section 29 of the Workmen’s Compensation Law is not a bar to a coemployee who is suing for assault. On the authority of that case, the order Appealed from should be reversed, with $20 costs and disbursements to the appellant, and the plaintiff-appellant’s motion granted to strike out the “ First Separate and Distinct Defense” contained in paragraphs 5th to 8th, inclusive, of defendant’s answer, which alleges that the assault was committed by a fellow servant and that the remedy by workmen’s compensation is therefore exclusive under subdivision 6 of section 29 of the Workmen’s Compensation Law. Order unanimously reversed, with $20 costs and disbursements to the appellant, and the motion granted. Present — Peck, P. J., Glennon, Dore, Van Voorhis and Shientag, JJ.