
    RAPPA v. PITTSTON STEVEDORING CO. et al.
    Civil No. 3021.
    District Court, E. D. New York.
    March 4, 1943.
    See, also, 48 F.Supp. 911.
    John J. Welsh, of Brooklyn, for plaintiff.
    Alexander & Ash, of New York City (Leo J. Curren and Edward Ash, both of New York City, of counsel), for defendant Pittston Stevedoring Co.
   BYERS, District Judge.

Motion by defendant Pittston Stevedoring Co. for leave to serve an amended answer to plead as a fourth separate defense that the plaintiff, who was an employee of Moore-McCormack Lines, Inc., when he was injured, has applied for and received compensation under the Workmen’s Compensation Law of the State of New York from his employer.

Opposition to the granting of the motion on the part of the plaintiff is based upon Section 29, Subdivision 1, of that Law which in substance provides, that an injured person is not required to elect between his right to apply for compensation, and his remedy against a third party, but may seek both forms of redress, subject to the provisions of the Section.

Upon both reason and authority, this position seems to be sound. It is not a defense to the plaintiff’s action that he has applied for and received compensation, but his conduct in so doing may be consistent with the defendant’s theory that his injury was caused by the act or omission of a fellow employee.

If the purpose of the defendant is to urge that at the trial, it has already laid the foundation for the tender of evidence to that effect, by paragraph eleventh of the answer on file.

That the fourth separate defense is insufficient as a matter of law seems to have been decided in Hession v. Sari Corporation, 283 N.Y. 262, 28 N.E.2d 712.

The motion is denied. Settle order.  