SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT
February 18, 1969
SAVARIO VACCARO ET AL., APPELLANTS,
H. R. H. CONSTRUCTION CORP., DEFENDANT-RESPONDENT AND THIRD-PARTY PLAINTIFF. D'AQUILA BROS. CONTRACTING CO., INC., THIRD-PARTY DEFENDANT
Concur -- Eager, J. P., Tilzer, Nunez, Rabin and Macken, JJ.
In this personal injury action the court dismissed the complaint at the end of the plaintiff's case. The court, in effect, found that the defendant "H. R. H. Construction Company [was] the employer of these men at the time" of the accident, thus limiting plaintiffs' remedy in relation to H. R. H. to a workmen's compensation claim. In our opinion the record does not sustain such finding as a matter of law. Accordingly, the complaint should not have been dismissed. The matter is thus remanded for a new trial.
Judgment entered June 12, 1968 is reversed on the law and the matter is remanded for a new trial, with costs to abide the event.
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