(dissenting in part). The first and second affirmative defenses plead the exclusiveness of the New York State Workmen’s Compensation Law. The third defense alleges that the Workmen’s Compensation Law of North Carolina is exclusive. The statutes of both States are invoked by defendant inasmuch as, until the evidence is adduced at the trial, there is uncertainty concerning whether either or both of said statutes apply. Under the majority opinion of this court the defense based upon the North Carolina Act is allowed *151to stand, whereas the defense based upon the Workmen’s Compensation Act of New York State is being stricken upon the ground of res judicata, in view of the circumstance that plaintiff had filed a claim for workmen’s compensation in New York State which was dismissed upon a finding that the injuries did not arise out of and in the course of plaintiff’s employment by defendant.
It seems to me that plaintiff’s failure to recover workmen’s compensation against defendant, whether in New York or elsewhere, falls short of establishing conclusively that he is entitled to maintain against defendant a common-law action. The fallacy in such a conclusion is pointed out by the Supreme Court of Missouri in Mangiaracino v. Laclede Steel Co. (347 Mo. 36). The automobile accident from which plaintiff’s injuries arose occurred in North Carolina, far from where defendant was, nor is defendant fully informed concerning the facts and circumstances, which are known personally to plaintiff. It was not incumbent upon defendant to assume the burden of proving that the accident did arise out of and in the course of plaintiff’s employment, when plaintiff’s claim to workmen’s compensation was being tried, nor was defendant under a duty to refrain from introducing whatever evidence may have been at his disposal to disprove the compensation claim, under penalty of reviving a type of common-law action against bim that the Workmen’s Compensation Law has abolished. In the Mangiaracino case, the Missouri Court said (p. 44): “ Plaintiff’s principal claim seems to be that because an Illinois court has found that plaintiff did not have a compensation claim, such judgment is conclusive that he had a common law action. We think this is non sequitur. Of course, we must give full faith and credit to the Illinois judgment. But when we do, what does that judgment decide for us? In the final analysis, that judgment merely shows that the Illinois court decided that plaintiff (who there had the burden of proof) failed to prove that his injuries arose out of and in the course of his employment. Certainly the ruling of that court (which had no common law case before it) that plaintiff did not then prove a compensation case determines nothing as to whether or not he could later prove a common law case. We do not know what the Illinois court had before it, or why it decided that plaintiff failed to prove a compensable case under the Illinois Act. Perhaps plaintiff’s proof therein failed to make a ease under the rule of the Great Atlantic & Pacific Company case (180 N. E. 460), as his prima facie case herein no doubt now *152does. But why he failed there makes no difference in this case. What we are called upon to decide is: What do plaintiff’s pleadings and. evidence show now, in this case? [Blaine v. Huttig Sash & Door Co., 232 Mo. App. 870, 105 S. W. (2d) 946; Culhane v. Economical Garage, 195 App. Div. 108, 186 N. Y. Supp. 454.] We hold that there is only one kind of a case that either his pleadings or evidence herein could show, and that is a case based upon the duty of due care which an employer owes to his employee while he is at a place where he has a right to be during the hours of his employment. In other words, plaintiff’s prima facie case shows a common law master and servant case which must necessarily arise out of and in the course of the employment. The Illinois Workmen’s Compensation Act, and all of the cases construing it, clearly show that such a common law action on such a case was abolished, when that act was adopted. Plaintiff’s trouble is,that he cannot prove an Illinois common law case by evidence that shows only an Illinois Workmen’s Compensation case. Since plaintiff’s proof shows no common law cause of action in Illinois, we must hold that he had none here.”
The reasoning of that opinion is directly in point, and applies regardless of whether the facts at the trial may show that plaintiff comes under the Workmen’s Compensation Acts of New York or of North Carolina. Defendant does not yet know what will be the shape of the evidence at the trial, which may differ materially from what plaintiff proved before the Workmen’s Compensation Board. Defendant should not be held liable in advance if it develops that plaintiff’s proofs establish merely a master-and-servant case which has been abolishéd by statute.
The orders appealed from should be reversed and plaintiff’s motion to strike out the three affirmative defenses should be denied.
Dore, Callahak and Shiektag, JJ., concur in Per Curiam opinion; Yak Voorhis, J., dissents in part in opinion in which Peck, P. J., concurs.
Order striking out the first two separate defenses affirmed, and the order on reargument striking out the third defense is reversed, without costs. Settle order on notice. [See post, p. 906.]