PER CURIAM:
The judgment and order appealed from should be reversed and a new trial ordered, with costs to the appellant to abide the event, with leave to defendant to serve an amended answer alleging that plaintiff elected to receive compensation under the Workmen's Compensation Law. If such be the fact, this action cannot be maintained. ( Lester v. Otis Elevator Co., 169 App. Div. 613; Miller v. N.Y. Railways Co., 171 id. 316, 319; Pavia v. Petroleum Iron Works Co., 178 id. 345; Travelers Ins. Co. v. Brass Goods Mfg. Co., 239 N.Y. 273.)