Winter v. Peter Doelger Brewing Co. , 159 N.Y.S. 113 ( 1916 )

Bijur, J.

Defendant conducts a brewery. Plaintiff was one of its drivers engaged in delivering beer. While making such a delivery to a saloon-keeper at premises disconnected with the brewery, he was injured through the collapse of an elevator on said premises. Defendant happened to be the owner of these premises, and has succeeded in the court below on the plea that the remedy given by the Workmen’s Compensation Law is exclusive.

The case of Lester v. Otis Elevator Co., 169 App. Div. 613, is determinative of the point that that law does not deprive the injured employee of his common law remedy against a third person by whose negligence he may be injured, although at the time he was pursuing his duties under the terms of his employment. It seems to me to follow as the inevitable corollary of that proposition that if he be injured while in the course of his master’s employment through the negligence of that master when the latter is engaged in an enterprise altogether independent of and unrelated to the business in which the servant is employed (i. e., in this case the ownership of separate real estate), the master as to that enterprise must be regarded as a third party. It is a matter of common knowledge that individuals and corporations operate and own respectively enterprises and properties entirely unrelated to and independent of one another. The Workmen’s Compensation Law was surely not intended to prevent an employee from recovering under the common law for negligence of a person or corporation merely because in an entirely different capacity and interest he or it happened to be the owner of such an independent enterprise or property. This, for example, would, it seems to me, be apparent if the plaintiff while engaged in the business of the brewery conducted by the defendant happened to be injured through the negligence of officers of a steamboat plying on a route hundreds of miles from this city merely because the steamboat was owned by the brewery corporation.

Judgment reversed and new trial orde red with thirty dollars costs to appellant to abide the event.

Cohalan, J., concurs.