(dissenting). I dissent and vote to reverse the order dismissing the complaint.
The motion was made pursuant to rule 112 of the Rules of Civil Practice. On such a motion only the sufficiency of the complaint may be considered. (Lipkind v. Ward, 256 App. Div. 74.) In addition to that, the complaint specifically alleges that plaintiff’s injuries are not compensable 'under the provisions of the Workmen’s Compensation Law. On this motion we are bound to assume the truth of all the allegations of the complaint. Furthermore there is nothing in the complaint to show that the disease from which plaintiff is suffering resulted from the nature of his employment. In fact the complaint alleges that plaintiff’s condition was caused because of defendant’s failure to provide a safe place to work.
Bliss and Foster, JJ., concur with Hill, P. J; Heffbrnan, J., . dissents in a memorandum in which Brewster, J., concurs.
Order dismissing complaint affirmed, with costs.