Order unanimously affirmed, without costs. Memorandum: The alleged tortious act upon which plaintiff bases his cause of action was independent of and not related to the common employment of the parties to the action. The fact that the act occurred upon the employer’s premises (cf. Doyle v. Jennings, 31 A D 2d 608) is not controlling because of the intervention of
Page 739
the over-riding and independent alleged wrongful conduct of defendants which had no relationship to common employment (ef. Matter of Marks v. Freeman Bus Corp., 28 A D 2d 751). (Appeal from order of Onondaga Special Term granting motion to dismiss defense of Workmen’s Compensation Law.) Present —'Goldman, P. J., Marsh, Witmer, Bastow and Henry, JJ.