
    Henry J. Baum, as Administrator, etc., of William Baum, Deceased, Respondent, v. Morse Dry Dock and Repair Company, Appellant.
    Second Department,
    December 31, 1913.
    Master and servant—negligence — employee killed by planks falling-from deck of vessel — negligence of fellow-servant — security for costs—notice upon application.
    In an action for the death of the plaintiff’s intestate it appeared that defendant’s foreman ordered a rigger and two employees to go on the deck of a vessel and remove certain planks by hand; that after the rigger and one man went up he told them that he would send another man, but without waiting for the third man they proceeded to remove the planks, which were fastened by a “half hitch,” by means of a derrick, and they fell over the rail to the deck below, killing the plaintiff’s intestate.
    
      Held, that there was a failure to establish negligence against the defend- ^ ant either at common law or under the Labor Law;
    That the accident resulted solely from the careless or negligent condueof one of decedent’s fellow-servants in using the derrick in a manner for which it was not intended by defendant to be used and in disobedience of express instructions.
    In an action by a non-resident an application by a defendant for security for costs under section 3371 of the Code of Civil Procedure should be made upon notice.
    Appeal by the defendant, Morse Dry Dock and Repair Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 10th day of March, 1913, upon the verdict of a jury for $2,800, and also from an order denying defendant’s motion for a new trial made upon the minutes, and also from an order entered in said clerk’s office on the 27th day of September, 1912, denying defendant’s motion to require plaintiff to give security for costs. .
    
      Pierre M. Brown, for the appellant.
    
      Edward J. McCrossin, for the respondent.
   Burr, J.:

The material facts upon which this controversy depends are not disputed. On August 16, 1911, William Baum was in defendant’s employ. Upon that date there was a steamship in the dry dock under defendant’s control, which was being repaired by it. Its deck rose seventy or seventy-five feet above the floor of the dry dock. Between two and three o’clock in the afternoon of that day Baum was at work upon the floor in close proximity to the vessel’s side in sorting out bolts and spikes. To repair the deck of this vessel teak planks were used, about sixteen feet long, ten or twelve inches wide and four inches thick. There is some evidence that each of these planks weighed about 250 pounds. To lift these planks from the floor of the dry dock to the vessel’s deck a derrick, to which was attached a block and fall, was employed. The boom of this derrick swung out over the vessel’s side. The fall was dropped to the floor of the dry dock, a chain sling was then fastened about the timber, it was raised by power applied through a winch operated by steam, and when it reached the proper height, by a guy rope, the load was drawn over the deck of the vessel and there deposited for use. Shortly before twelve o’clock four of these planks were" thus lifted to the vessel’s deck and placed a short distance from its side, resting upon a coil of rope. As there was no further material then to be hoisted, the chain sling was taken off and left lying by the side of the planks, so that it might be sent down when the next draft was ready, and the end of the fall was wound “around the four timbers to keep the rope in place there.” It was fastened by what was described as a “half hitch.” There is evidence that this was not a safe method to employ if the planks were to be moved by the power of the winch. Shortly before Baum was injured, some additional plank was received upon the floor of the dry dock, and it became necessary to move the planks then upon the steamer’s deck to make room for this additional material. Defendant’s foreman thus testifies, and his testimony is not disputed: “With reference to the planks on the deck of the ship, I ordered the rigger and two helpers to go on the deck of the ship and remove the lumber that was lying there so that I could make room for the lumber that was to be hoisted up off the dock. I told the rigger, and one helper went up, and I was going to send him another man. I gave him orders to lift the lumber that laid' on the deck by hand and lay it over on the hatch out of the way, to make room for the rest of the lumber, so that it would not be walked over.” There was also evidence, which was not disputed, that these planks could be thus moved. The rigger and one of the men went on the deck of the vessel, and after waiting two or three moments, ‘c The rigger say the stuff will be too heavy for two men to move it with the hand. He wanted to move it with the winch. Finally the rigger started with the winch. There was a piece of rope around this timber. * * . * I hold the guy, and the stuff went over the rail and dropped down on the dry dock. I tried to hold the guy. I couldn’t hold it. He raised it. About eighteen inches, two foot, something like that. The stuff went over the rail and fell through to the dry dock. If I had had another man there, the two of us could have held it. * * * Joe [meaning the foreman] was going to send another man, and he didn’t send one, the man didn’t come, he had not time enough. The man didn’t come — two or three minutes— the rigger wanted to move it with the winch.” As these planks swung over the vessel’s side they slipped from their imperfect fastening, and one of them striking Baum in its fall caused injuries from which he died.

We fail to see how, either at common law or under the provisions of the Labor Law (Consol. Laws, chap. 31 [Laws of 1909, chap. 36], as amd. by Laws of 1910, chap. 352), the provisions relating to the use of hoists (§ 18), or those relating to employers’ liability (§§ 200-202a), any actionable negligence was established. The planks did not fall through any negligence on the part of the superintendent or any person intrusted with authority to direct, control or command any employee in the performance of his duty. On the contrary, if we concede that the method actually employed in the attempt to move these planks from one part of the deck to the other was negligent, this was not in obedience to, but in direct defiance of, the orders given to the rigger in respect thereto.

The learned counsel for respondent contends that negligence may be found from the fact that defendant’s superintendent testified that an hour or two before the accident happened he saw these planks lying upon the steamer’s deck, and that the chain sling had then been removed from them, and that he then saw or should have seen that the end of the fall had been wrapped about them with this “half hitch,” and that it was permissible for the jury under such circumstances to find negligence upon his part, in that he did not forbid the use of the derrick to move this material until it had been properly secured. But this is precisely what he did, although not immediately. When it became necessary to remove the plank, he directed that they be moved, not by the derrick, but by hand.' The selection of one method and the direction that it should be employed was necessarily the exclusion of the adoption of any other. If he had been obeyed, the removal could have been safely made. Neither can it be successfully urged that defendant had furnished or caused to be furnished a “hoist” which was unsafe or unsuitable or improper. (Labor Law, supra, § 18.) The derrick was not furnished to be used, at least on this occasion, to remove this lumber, and the wrapping of the rope about the planks was not, according to the testimony of plaintiff’s only witness, for the purpose of moving the same.

Neither can negligence be found in the failure to have a sufficient guy rope, or sufficient men to hold the guy rope, to prevent the boom from swinging over the vessel’s side. The accident resulted solely from the careless or negligent conduct of one of decedent’s fellow-servants in using the derrick in a manner for which it was not designed or intended by defendant to be used, and in disobedience of express instructions as to the method to be employed in moving this material. For such negligence the master is not liable at common law, and the disobedient servant occupied no such relation to the master that for such acts the latter would be liable under any statute. (Lorenzo v. Faillace, 132 App. Div. 103.)

It follows that the judgment and order denying the motion for a new trial must be reversed, and a new trial granted, costs to abide the event.

Defendant also appeals from an order which recites that the motion therefor was made before the joining of issue denying its application that plaintiff give security for costs. Plaintiff was at the time of the commencement of the action and-of the making of such motion a non-resident. He is also the administrator of the decedent appointed by the Surrogate’s Court of Kings county. Unless plaintiff is entitled to notice of such application, it would seem that in the first instance defendant was entitled to the order. (Mills v. Nassau Bank, 123 App. Div. 514; Hilgenberg v. Great Eastern Casualty & I. Co., 144 id. 411; Schmalz v. Crow Construction Co., 146 id. 623.) The question whether such order may be made under the provisions of section 3268 of the Code of Civil Procedure, in which case it is a matter of right and may be had ex parte or whether it must be made under section 3211 of said Code and whether in such case notice is necessary is not free from doubt and the decisions thereon are conflicting. (Swift v. Wheeler, 46 Hun, 580; Pursley v. Rodgers, 44 App. Div. 139; Clarendon v. Milliken Brothers, Inc., 116 id. 930; Schmalz v. Crow Construction Co., supra; Smiley v. Finucane, 134 N. Y. Supp. 59.) In Pursley v. Rodgers (supra) Mr. Justice Barrett said that under circumstances similar to those here disclosed the application should be made under section 3271, and he adds: When the defendant seeks security as matter of right, he is authorized to proceed ex parte and to apply therefor to the court or to a judge of the court. When he invokes discretion under section 3271 he must apply to the court and necessarily upon notice.” While this expression in his opinion was not necessary to the decision of that case, when a similar question came before this court in Clarendon v. Milliken Brothers, Inc. (supra) the court in this department, speaking through Mr. Justice Jenks, with whom all the other justices concurred, said: “I agree with Barrett, J., in Pursley v. Rodgers (44 App. Div. 139) that this plaintiff was not required absolutely to give security for costs under section 3268 of the Code of Civil Procedure. Under section 3271 of that Code it was a matter of discretion with the court.” Following that decision, which is the latest utterance upon the subject made in this department, we affirm the order appealed from, with ten dollars costs and disbursements, upon the ground that notice of the application for such security should have been given and without prejudice to a renewal of the application therefor upon notice if defendant is so advised.

Jerks, P. J., Carr, Rich and Stapleton, JJ., concurred.

Judgment and order denying motion for new trial reversed and new trial granted, costs to abide the event. Order denying defendant’s motion to require plaintiff to furnish security for costs affirmed, with ten dollars costs and disbursements, upon the ground that notice of the application for such security should have been given, and without prejudice to a renewal of the application therefor upon notice if defendant is so advised.  