Louis Baeringer, Respondent, v. The City of New York, Appellant

Louis Baeringer, Respondent, v. The City of New York, Appellant. Appeal from a judgment of the Supreme Court in favor of the plaintiff, entered in the New York county clerk’s office February 14, 1923, as resettled by an order entered April 30, 1923, and re-entered May 8, 1923, upon the verdict of a jury for $704, and also from said order entered April 30, 1923, granting plaintiff’s motion for costs and to amend the judgment by inserting therein plaintiff’s costs as taxed. [MAJORITY — Per Curiam:] Per Curiam: The judgment and order appealed from should be reversed and a new trial ordered, with costs to the appellant to abide the event, with leave to defendant to serve an amended answer alleging that plaintiff elected to receive compensation under the Workmen’s Compensation Law. If such be the fact, this action cannot be maintained. (Lester v. Otis Elevator Co., 169 App. Div. 613; Miller v. N. Y. Railways Co., 171 id. 316, 319; Pavia v. Petroleum Iron Works Co., 178 id. 345; Travelers Ins. Co. v. Bro,ss Goods Mfg. Co., 239 N. Y. 273.) Present — Clarke, P. J., Merrell, Finch, Martin and Burr, JJ. Judgment and order reversed and new trial ordered, with costs to appellant to abide the event, with leave to defendant to serve an amended answer.