Alice Davis, Respondent, v. Behr-Manning Corporation et al., Appellants; Russell J. Davis, Respondent, v. Behr-Manning Corporation et al., Appellants

Alice Davis, Respondent, v. Behr-Manning Corporation et al., Appellants. Russell J. Davis, Respondent, v. Behr-Manning Corporation et al., Appellants. [MAJORITY] Appeal from an order of the Supreme Court, Albany County Trial Term, which struck out defenses in both actions to the effect that the assault alleged came within the provisions of the Workmen’s Compensation Law. The order was made during the course of a trial and after the plaintiff’s proof was in, but the trial was never completed. It is quite apparent that the order was not made solely upon the pleadings but was based, in part at least, upon the proof. It cannot be foretold that the proof in another trial will be precisely the same, and hence we think the order went down with the mistrial and should be treated as a nullity. Order reversed, upon the law, without costs and without prejudice. Foster, P. J., Bergan, Coon, Halpern and Imrie, JJ., concur.