Opinion
November 19, 1930.
Appeal from the Municipal Court, Borough of Manhattan, First District.
Abraham I. Simon, for the appellant.
Nadal, Jones Mowton [ Joseph S. Robinson of counsel], for the respondents.
The provisions of section 13 Work. Comp. of the Workmen's Compensation Law (as amd. by Laws of 1927, chap. 553) have no application to an action at law by a physician to recover from the employer the agreed price for services rendered to an employee at the employer's request. (See Frant v. Cobban Son, Inc., 133 Misc. 433; affd., 226 A.D. 796.)
There was no proof to establish an agreement by plaintiff to conform to the Workmen's Compensation Law, nor was there any plea of election of remedies. It was error, therefore, to receive evidence concerning the requirements of the Workmen's Compensation Law and of plaintiff's failure to comply therewith and to charge the jury with respect thereto.
Judgment reversed and new trial ordered, with thirty dollars costs to appellant to abide the event.
All concur; present, LYDON, LEVY and CALLAHAN, JJ.