Myers v. May

Order reversed, with $10 costs and disbursements and motion denied, with $10 costs. Memorandum: The motion by the plaintiff to strike out the affirmative defense set forth in the answer should have been denied (Rauch v. Jones, 4 A D 2d 572; Roberts v. Gagnon, 1 A D 2d 297). Whether the driver of the truck alleged in the answer to be “ a fellow servant-ad-hoe” was a coemployee of the plaintiff within the meaning of subdivision 6 of section 29 of the Workmen’s Compensation Law, is a question to be determined upon the trial of the action. (Lee v. Cranford Co., 182 App. Div. 191, affd. 230 N. Y.…