Opinion
February 13, 1962
In an action to recover damages for personal injuries sustained by plaintiff as a result of the negligent maintenance of a truck owned by defendant and rented by him to a corporation, Rentar Trucking, Inc., by which plaintiff was employed at the time of the accident, wherein defendant in his amended answer pleaded a separate affirmative defense that plaintiff and he were fellow employees of the corporation, that the accident occurred in the course of their common employment and that plaintiff's exclusive remedy is under the Workmen's Compensation Law, the defendant appeals from an order of the Supreme Court, Kings County, dated September 7, 1961, which granted plaintiff's motion to strike out such defense as insufficient in law, pursuant to subdivision 6 of rule 109 of the Rules of Civil Practice. Order reversed, without costs, and motion denied, without prejudice to such further motion with respect to said defense as plaintiff may be advised. Although this motion to dismiss the defense as legally insufficient was made pursuant to rule 109, it was supported by defendant's voluminous testimony given during his examination before trial, and it was decided on the basis of such testimony. Rule 109, however, permits a defense consisting of new matter to be stricken out as insufficient in law only "where * * * the * * * defects appear on the face thereof"; on a motion under this rule only the pleading may be examined to determine the sufficiency of the defense. It was improper, therefore, to grant the motion and to strike out the defense on the basis of the extraneous matter, to wit: defendant's testimony adduced at his examination before trial. Beldock, P.J., Ughetta, Kleinfeld, Christ and Brennan, JJ., concur.