
    Harriett Brecher, as Administratrix of the Estate of Edward A. Brecher, Deceased, Appellant, v. Philip C. Brecher, Respondent.
    Argued November 17, 1970;
    decided December 10, 1970.
    
      
      Herman Schmertz for appellant.
    
      Sheila L. Birnbaum, Emile Z. Berman and A. Harold Frost for respondent.
   Memorandum. The concurring memorandum at the Appellate Division correctly concluded that ‘ ‘ the amendment of an answer to plead the statute before trial should liberally be granted to promote the legislative intent that employees should generally be compensated for their injuries through the exclusive remedy of the statute, but the court’s discretion still remains to deny the amendment where clear and disabling prejudice will be worked to the plaintiff.” The concurring Justice’s further conclusions that in this case no such prejudice existed, and that the discretion of the Trial Term was properly exercised, would be unassailable had the Trial Term’s decision indeed been rendered in the exercise of discretion; but it is clear that the issue was there treated and decided as one of law, and hence we are constrained to find ineffectual the Appellate Division’s holding that, “The findings of fact were affirmed.”

The order appealed from should be reversed, with costs, and the case remitted to Supreme Court, Kings County, for determination of the issues of fact. Question certified answered in the negative.

Chief Judge Fuld and Judges Burke, Scileppi, Bergan, Breitel, Jasen and Gibson concur.

Order reversed, with costs, and case remitted to Supreme Court, Kings County, for further proceedings in accordance with the memorandum herein. Question certified answered in the negative.  