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eBook details

• Title: Theodore Caffery v. New York Central Railroad Co.
• Author : Supreme Court of New York
• Release Date : January 16, 1965
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 68 KB

Description

Order unanimously modified by reinstating the second affirmative defense and as modified affirmed, without costs of these appeals to either party. Memorandum: In this action for wrongful discharge plaintiff appeals from that part of Special Term's order which denied his motion made under CPLR 3211 (subd. [ b ] ), to strike the first affirmative defense and defendant appeals from part of the order which struck the second affirmative defense. In an earlier action by plaintiff for serious personal injuries incurred in the course of his employment, the action was settled during trial by payment of $45,000 by defendant. The first of the defenses alleges plaintiff is estopped from claiming reinstatement and asserting his physical fitness to return to work because the earlier action was predicated on his claim of permanent injuries. The correctness of the order in refusing to strike this defense is amply supported by a number of Federal decisions almost precisely in point, which went even further and granted summary judgment to defendant (Hodges v. Atlantic Coast Line R.R. Co., 238 F. Supp. 425; Scarano v. Central R.R. Co. of New Jersey, 203 F.2d 510; Jones v. Central of Georgia Ry. Co., 331 F.2d 649; Buberl v. Southern Pacific Co., 94 F. Supp. 11).This defense creates an issue of fact which cannot be determined until a trial of the issues. The same is true of the second defense based

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