
    Leonora Maslanka, as Administratrix, etc., of Joseph Maslanka, Deceased, Respondent, v. The American Manufacturing Company, Appellant.
    Defendant’s breaker machines had an outer grating or guard covering the end gears. Necessarily, this grating had to be opened for oiling the cog wheel bearings. For six months before the accident the deceased had been oiling these bearings with the machine in motion. The omission to stop it during oiling was the gravamen of the notice under the Employers’ Liability Act, and not the absence of a guard. The weight of evidence is that, considering this gearing and its frequent changes during the day, it was not practicable while the bearings were being oiled to guard each individual cog wheel. Hence, it was error to charge plaintiff’s request that, as far as the oiler’s work is concerned, the absence of any guards orí the wheels and their exposure to him in his work, is affirmatively a violation of the statute. Even as to a machine maintained wholly without guards, such omission is only presumptively contrary to the statute. (Scott v. International Paper Co., 204 N. Y. 49.) The judgment and order are, therefore, reversed, and a new trial granted, costs to abide the event.
    
      
      See Labor Law (Consol. Laws, chap. 31; Laws of 1909, chap. 36), art. 14, as amd. by Laws of 1910, chap. 353.—[Rep.
    
    
      
      See Labor Law (Consol. Laws, chap. 31; Laws of 1909, chap. 36), § 81, as amd. by Laws of 1910, chap. 106; since amd. by Laws of 1913, chap. 286.— [Rep.
    
   Jenks, P. J., Thomas, Carr, Stapleton and Putnam, JJ., concurred.  