Opinion
March 9, 1938.
Appeal from an order granting plaintiff's motion to strike out the affirmative defenses: First, of assumption of risk, and second, that the plaintiff's exclusive remedy is a proceeding under the Workmen's Compensation Law, and third, the defense of the fellow-servant rule. The motion was made under rule 109 of the Rules of Civil Practice, it being claimed that the defenses referred to were insufficient in law. Plaintiff's complaint is based on two causes of action. The first cause of action is founded upon the violation of the common-law duties which rested upon the defendant; it is alleged that as the result thereof plaintiff contracted silicosis. The second cause of action is based solely upon the defendant's violation of the Labor Law and rules of the Industrial Board, and it is alleged that by reason of the defendant's violation of the Labor Law, relating to the conditions present in the the defendant's plant, the plaintiff contracted silicosis. The motion to strike out the assumption of risk is made only in reference to the second cause of action. (See Michalek v. United States Gypsum Co., 16 F. Supp. 708; Schmidt v. Merchants Despatch Trans. Co., 270 N.Y. 287.) Order affirmed, with ten dollars costs and disbursements. McNamee, Crapser and Heffernan, JJ., concur; Hill, P.J., dissents; Bliss, J., concurs in the decision of affirmance in so far as the order strikes out the affirmative defenses contained in paragraphs sixth, seventh, thirteenth and fourteenth of the answer, which are the so-called Workmen's Compensation Law defenses, and dissents as to the remainder of the decision.