Fabrizio v. Fader — 6 A.D.2d 1015

Majority

p. 1015

Philip Fabrizio, Respondent, v. Carl Fader et al., Copartners Doing Business under the Name of Eastern Store Front Company, Appellant. Dominic Carpentierre, Respondent, v. Carl Fader et al., Copartners Doing Business under the Name of Eastern Store Front Company, Appellant.

Motion for reargument granted. On reargument, the decision of this court handed down March 24, 1958 ( 5 A D 2d 884 ), is amended to read as follows: In a consolidated action by two motor vehicle passengers against its owner to recover damages for personal injuries, each answer contains two separate affirmative defenses alleging that section 29 of the Workmen’s Compensation Law is a bar to the action because the operator of the motor vehicle was a fellow employee of the injured passengers. The appeal is from an order striking out those defenses as insufficient (Rules Civ. Prac., rule 109). Order affirmed, with $10 costs and disbursements. Appellant, if so advised, may serve an amended answer within 20 days after the entry of the order hereon invoking subdivision 6 of section 29 of the Workmen’s Compensation Law. There is no allegation in the defenses presently under review that the passengers and the operator were engaged in the course of the business of their common employer at the time of the happening of the accident. Wenzel, Acting P. J., Murphy, Ughetta, Hallinan and Kleinfeld, JJ., concur.