Empie v. Entwhistle
| Decision Date | 30 July 1962 |
| Citation | 230 N.Y.S.2d 648,35 Misc.2d 674 |
| Parties | Richard EMPIE, by Ralph Bartholomew, his Guardian ad Litem, Plaintiff, v. George W. ENTWHISTLE and Florence Entwhistle, Defendants. |
| Court | New York Supreme Court |
Philip D. O'Donnell, Herkimer, for plaintiff.
Bartle Gorman, Utica, for defendants.
The defendants have moved pursuant to Rule 103 of the Rules of Civil Practice for an order striking out paragraph '6' of plaintiff's complaint upon the ground the matter contained in said paragraph is sham, frivolous, irrelevant, redundant, unnecessary, impertinent or may tend to prejudice, embarrass or delay the fair trial of the above action. Paragraph '6' of the complaint in substance alleges that defendants had failed to obtain Workmen's Compensation covering its employees and in particular to cover the injuries covered by the plaintiff in the accident in question.
The complaint recites that 'while the infant plaintiff, in the performance of his duties as farm laborer for the defendants aforesaid, was standing in the box of the said jeep truck which had been parked by the defendants' son in close proximity to the field chopper and farm tractor, by reason of the icy condition of the floor of the box of said jeep truck, infant plaintiff lost his footing and was thrown into the knives of the said field chopper.'
Motions to strike out part of a complaint as sham or irrelevant are not favored and they will not be granted in the absence of a clear showing that the allegations have no possible bearing upon the subject matter of the litigation and that substantial prejudice will result if the allegations objected to are not stricken out. (Manco Distributors, Inc. v. Bigelow-Sanford Carpet Co., Inc., 11 A.D.2d 1088, 206 N.Y.S.2d 743).
A reading of the complaint clearly establishes the defendant as owners and operators of a farm and the plaintiff to be employed as a farm laborer for the defendants and at the time of the alleged occurrence plaintiff was in the performance of his duties as a farm laborer. The plaintiff was not in the class of employees who are required to be covered by Workmen's Compensation Insurance and it is unnecessary to allege in the complaint that defendants did not carry Workmen's Compensation Insurance, where defendant employers are liable to employee plaintiff in either event. (Artonio v. Hirsch, 4 Misc.2d 42, 157 N.Y.S.2d 398) affirmed in part and reversed in part on other grounds (3 A.D.2d 939, ...
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Empie v. Entwhistle
...Gorman, Utica, for appellant. Philip D. O'Donnell, Herkimer, for respondent. Judgment unanimously affirmed with costs. See also 35 Misc.2d 674, 230 N.Y.S.2d 648. (Appeal from judgment of Herkimer Trial Term, Cardamone, J., in favor of plaintiff in a negligence action; also appeal from order......