Opinion
March 19, 1958
Appeal from the Erie Special Term.
Present — McCurn, P.J., Kimball, Williams, Bastow and Halpern, JJ.
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-hoc" was a coemployee of the plaintiff within the meaning of subdivision 6 of section 29 Work. Comp. 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. 618.) All concur.