
    Celia Reilly, as Administratrix, etc., of David Reilly, Deceased, Respondent, v. Troy Brick Company, Appellant.
    Third Department,
    March 19, 1908.
    Master and servant—.negligence — death by fall of embankment —when former decision on appeal not applicable.
    Although the Court of Appeals has reversed a dismissal of a complaint upon the ground that the defendant might have been found negligent in removing the lateral support from the base of an embankment, which fell and killed the plaintiff’s intestate, a judgment for the plaintiff on a new trial will be reversed where it appears that the defendant left the deposit from a second landslide in place so as to furnish lateral support, and a third landslide occurred nevertheless, for there is a physical demonstration of the fact that the various slides were due to causes other than lack of lateral support.
    Chester, J., dissented.
    Appeal by the defendant, the Troy Brick Company, fi;om a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Bensselaer on the 14th day of January, 1907, upon the verdict of a jury for $2,200, and also from two orders entered in said clerk’s office on the 14th day of January, 1907, respectively denying the defendant’s motion for a new trial made upon the minutes and granting the plaintiff’s motion for an extra allowance.
    
      Thomas S. Fagan and Lewis F. Griffith, for the appellant.
    
      George B. Wellington, for the respondent.
   Per Curiam :

A former judgment herein dismissing the complaint was sustained by this court (108 App. Div. 108) and reversed by the Court of Appeals (184 H. Y. 399). In the year 1903 the first slide occurred in the brick yard in question. Most of the clay brought down by that slide had been gradually' removed for consumption by defendant in its process of brick making. It was this work of removal in which Beilly was engaged at the time he was killed by the second glide which occurred in 1904, The Court of Appeals, while stating that the evidence of defendant’s negligence was very meager, held that the deposit of clay formed by the slide of 1903 constituted a lateral support at the base of the bank, and that the jury might have found negligence on the part of defendant in removing that lateral support so as to leave the base of the bank unprotected, and that seems to have been the only ground of negligence on which the court based its reversal. It was stated in the opinion: “ The great deposit of clay formed by that slide (of 1903), so long as it remained undisturbed, furnished an ample lateral support for the.remaining part of the bank, but when removed the former condition of danger was necessarily reinstated.” It now appears in this record that in the year 1906, after the trial which resulted in the dismissal of the complaint, a third slide occurred in this brickyard. It is undisputed that the deposit of earth and clay which came down in the second slide of 1904, when Reilly was killed, was twice as great in volume as that which fell in 1903, and that the entire amount of this second and greater deposit remained at the base of the bank intact and undisturbed until the third slide occurred in 1906. We have, therefore, in the present record the physical demonstration of the fact that these various slides were due to causes other than the absence of a lateral support at the base of the bank. This significant feature of the case did not appear in the former record, and as the present record differs from the former on this material and controlling branch of the case, we think the opinion of the Court of Appeals is not now applicable.

The judgment and orders must, therefore, be reversed and a new trial granted, with costs to the appellant to abide the event.

All concurred, except Chester, J., dissenting, and Cochrane, J., not voting

Judgment and orders reversed and new trial granted, with costs to appellant to abide event.  