
    Lena Kaufman, as Administratrix, etc., of Frederick Kaufman, Deceased, Appellant, v. Abraham C. Hopper, Respondent.
    Second Department,
    May 17, 1912.
    Conflict of laws cession of territory to United States — negligence — action under State statute creating action for death, by wrongful act — Labor Law enacted subsequent to cession of territory inapplicable — practice — dismissal of complaint at opening of trial — demurrer — bill of particulars.
    As the statute of this State creating a cause of action for death caused- by negligence was in force at the"time the lands embraced in the Brooklyn navy yard were ceded to the United States a common-law action may be brought against a master based on negligence resulting in the death of a servant while working in said navy yard.
    But as the Labor Law of this State was enacted subsequent to said cession of territory no action against the master can be based thereon.
    Where a complaint is dismissed at the opening of the trial it must be treated as if it had, been demurred to.
    On a demurrer to a complaint upon the grounds of insufficiency a bill of particulars served by the plaintiff should not be considered as part of the pleading.
    
      Appeal by the plaintiff, Lena Kaufman, as administratrix, etc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 12th day of June, 1911, upon the dismissal of the complaint on the pleadings by direction of the court at the opening of the trial at the Kings County Trial Term.
    
      Edward E. Reardon [Charles C. Clark with him on the brief], for the appellant.
    
      Hugo Hirsh [Leon N. Futter with him on the brief], for the respondent.
   Carr, J.:

Plaintiff appeals from a judgment dismissing her complaint in an action brought to recover damages for the death of her intestate, she having been appointed administratrix by the Surrogate’s Court of Kings county. The accident occurred in the navy yard, in Brooklyn. The complaint attempts to set up two causes of action. The negligence complained of in the first cause of action is that the defendant failed to furnish the decedent with a safe and .suitable place in which to work and with safe and suitable appliances with which to work, and in failing to furnish the decedent with competent and efficient fellow-servants, by reason of which a scaffold upon which decedent was working broke and fell, causing him injuries which resulted in his death.

The second cause of action is apparently brought under the Labor Law. (See Gen. Laws, chap. 32 [Laws of 1897, chap. 415], § 18.) A motion was made to dismiss the complaint before any proof was offered by the plaintiff to sustain these allegations. It was conceded at the trial that the navy yard had been ceded by the State of New York to the United States under chapter 355 of the Laws of 1853.

At the time of such cession chapter 450 of the Laws of 1847 and chapter 256 of the Laws of 1849, which gave a cause of action to the personal representatives of a decedent, whose death was caused by negligence, were in force over the territory in question. These laws continued in force after the cession. (Chicago & Pacific Railway Co. v. McGlinn, 114 U. S. 542, 546.) Therefore, if. the complaint stated a cause of action arising' from a breach of the common-law duties of a master to the servant, which caused the death of the servant, it was sufficient. So far as the complaint attempted to state a further separate cause of action under the Labor Law, it was insufficient, for as to that statute the place of the accident was without its territorial scope, the statute being- enacted since the cession of the land to the United States.

In dismissing the complaint, it had to be treated as if it had been demurred, to. On a demurrer the first cause of action would certainly have been good so far as a common-law cause of action was concerned. It is asserted, however, that the plaintiff having served a bill of particulars, the bill of particulars must be considered as a part of the- complaint. This is not so when the sufficiency of the complaint is considered on a demurrer. (Hoey v. Kilduff, 65 Misc. Rep. 554.)

While the plaintiff might not have been able to prove the cause of action against the .defendant, yet the complaint was sufficiently strong to enable an attempt to do so by an .offer of proof. Under these circumstances, it was clearly error to dismiss the complaint as a whole..

The judgment should be reversed and a new trial granted, costs- to abide the event.

Hirschberg, Burr, Thomas and Woodward, JJ., concurred.

Judgment reversed, and new trial granted, costs to abide the event.  