Naud v. King Sewing Machine Co.

Headnote

Naud v. King Sewing Machine Co., 178 'App. Div. 31, affirmed.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered April 4, 1917, which reversed an interlocutory judgment of Special Term overruling a demurrer to the answer and sustained such demurrer. The action was to recover for personal injuries alleged to have been sustained by plaintiff through the negligence of defendant, his employer. The complaint alleged that by reason of defendant’s negligence plaintiff was caused to inhale poisonous fumes, vapors and gases, thereby sustaining injuries to his chest, throat and lungs. The answer alleged: “ For a further and separate defense that the said plaintiff heretofore and on or about the 2d day of February, 1916, in accordance with the provisions of the Workmen’s Compensation Law of the State of New York, presented to defendant the alleged claim referred to in the complaint for compensation according to the benefits described in said Workmen’s Compensation Law for said alleged injury claimed to have been sustained by him in the course of his said employment with the .defendant, and that thereafter said State Workmen’s Compensation Commission, and on or about the 29th day of March, 1916, after a hearing duly had thereon, adjudged that the alleged accident claimed to have been sustained by the said plaintiff did not constitute an accident and

adjudged that plaintiff’s said alleged claim be disallowed; and that by said judgment this action became and was forever barred and foreclosed.”

The following questions were certified: “ 1. Is that portion of the defendant’s answer set up as a further and separate defense in paragraph numbered “ Fifth ” sufficient in law upon the face thereof, to constitute a defense to plaintiff’s alleged cause of action? 2. Should the plaintiff’s demurrer be sustained? ”