Warner v. New York Central Railroad , 23 A.D.2d 642 ( 1965 )

Order, entered on May 19, 1964, unanimously reversed, on the law, and the first, separate and complete defense reinstated, with $30 costs and disbursements to the appellant. In reinstating the defense of release we do not reach or pass upon the merits of such defense. We say only, in the posture of the pleading on the record before us, we cannot conclude as a matter of law the inclusion of the pass provision in the bargaining contract with the plaintiff’s union represents a part of the defendant’s obligation for services rendered or to be rendered by plaintiff and could not be considered a possible gratuity. The nature of the pass and the scope of employment with respect to the pass and the injury -complained of, as indicated by the pleadings, raise triable factual issues. Concur — Rabin, J. P., Valente, McNally, Stevens and Steuer, JJ. [43 Misc 2d 848.].