Opinion
May, 1935.
Present — Sears, P.J., Taylor, Edgcomb, Thompson and Crosby, JJ.
Order and judgment reversed, with costs, and motion for judgment denied and motion to amend complaint granted, without costs. Memorandum: The complaint sufficiently alleges a cause of action which in the light of our decision in Giannovola v. General Railway Signal Co. ( ante, p. 65, decided March 13, 1935) and Schmidt v. Merchants Despatch Transportation Co. and the companion cases, ante, p. 606, decided May 15, 1935), we construe to be a cause of action in negligence. ( Martin v. Herzog, 228 N.Y. 164; Amberg v. Kinley, 214 id. 531.) (See, also, our per curiam memorandum in Woernley v. Electromatic Typewriters, Inc., ante, p. 679, decided May 22, 1935.) All concur. (The judgment is entered upon the order dismissing the amended complaint in an action for personal injuries caused by contracting pneumoconiosis.)