
    Paul Bray, as Guardian ad Litem of Michael Bray, an Infant, et al., Plaintiffs, v. Michael J. Burke et al., Defendants.
    Supreme Court, Special Term, Richmond County,
    June 28, 1962.
    
      Joseph E. Dworkin for plaintiffs. Michels, Gangel & Walton for Richmond County Country Club, defendant. Schaffner & Furey for Michael J. Burke, defendant.
   James S. Brown, J.

While the 15-year-old infant plaintiff was caddying for one of a golf foursome, which foursome included the defendant, Burke, he was struck and injured by a golf ball hit by Burke. The infant plaintiff and his father sue both Burke and the golf club and allege affirmative acts of negligence against both defendants.

The defendant club moves for summary judgment pursuant to rule 113 of the Rules of Civil Practice. It contends that the alleged injuries were sustained during the course of the infant plaintiff’s employment by the club; that the club carried workmen’s compensation insurance coverage for bim and that his exclusive remedy as against it is the filing of a claim for compensation benefits. A copy of the policy is attached. In support of its position the defendant club refers to Murphy v. Elmwood Country Club (183 Misc. 332) in which, upon almost identical facts, the defendant club’s motion for summary judgment was granted.

In his opposing affidavit, however, the infant plaintiff contends that he was not an employee of the club; that the club never paid him or supervised him except that the caddy master assigned him to a golfer; that the golfer gave him orders and paid him; that he worked only when he felt like it and that no money was ever deducted from his earnings for taxes or any other purpose.

Furthermore, as is pointed out in plaintiffs’ brief, there was no issue in the afore-mentioned Murphy case as to the fact that plaintiff was an employee of the club. There the negligence charged against the club was that it employed the infant plaintiff in violation of the Labor Law. The holding in that case was to the effect that an employee’s remedy is exclusively within the Workmen’s Compensation Law, although the employee was an infant who was hired in direct violation of section 130 of the Labor Law.

In my opinion, an issue of fact exists as to whether the infant plaintiff was an employee of the defendant club, a determination of which must await the trial of this action. Motion denied.  