Opinion
June, 1923.
Order in so far as appealed from modified by denying the motion to strike out the fifth and ninth defenses, and as so modified affirmed, without costs. The complaint seeks to piece out a common-law action with the aid of such provisions of the Employers' Liability Act as constituted under the common law the negligence of a fellow-servant. This cannot be done. ( Collelli v. Turner, 215 N.Y. 675.) We cannot say from the complaint whether plaintiff relies upon the common law or the statute, and under the circumstances the fifth defense should be permitted to stand until plaintiff develops his case on the trial. We think the seventh defense was properly stricken out as a mere conclusion of law. The ninth defense should not have been stricken out, as the matter was properly pleaded in mitigation. Kelly, P.J., Rich, Jaycox, Manning and Kapper, JJ., concur.