
    Anna L. Amberg, as Administratrix, etc., of William C. Amberg, Deceased, Respondent, v. Charles H. Kinley, Appellant.
    Third Department,
    January 21, 1914.
    Master and servant — negligence — failure to provide fire escapes — death of employee in burning factory—Labor Law—negligence and contributory negligence — pleading — notice.
    Where a complaint, in substance, alleges that the plaintiff has duly served a notice under the provisions of section 201 of the Labor Law, and the answer admits that the defendants received a paper purporting to state the time, place and cause of the injuries mentioned in the complaint, there is an admission that due notice was served, and it is no defense that the plaintiff did not offer the notice in evidence. The notice is no part of the case except as a condition precedent necessary to bring the cause within the statute.
    Where a master maintaining a factory of three or more stories fails to provide the building with fire escapes as required by section 82 of the Labor Law, and an employee working upon the third floor is burned to death under circumstances indicating that the death would not have occurred had the fire escapes been installed, the master is prima facie liable if the employee discharged his duty of exercising due care.
    
      It seems, however, that the prima facie liability of the master may be rebutted by evidence showing care on his part in providing equal, or superior, means of escape.
    In an action to recover for death so caused, the contributory negligence of the decedent is for the jury under the provisions of section 202a of the Labor Law.
    Lyon, J., dissented.
    
      Appeal by the defendant, Charles H. Kinley, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Chemung on the 3d day of February, 1913, upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s office on the 6th day of May, 1913, denying the defendant’s motion for a new trial made upon the minutes.
    
      Baker & Sessions [Halsey Sayles of counsel], for the appellant.
    
      Edgar Denton [Richard H. Thurston of counsel], for the respondent.
   Woodward, J. :

Plaintiff’s intestate was burned to death in a building upon the premises occupied by the defendant in manufacturing leather, at Breesport, on the 9th day of February, 1911, and this action is brought in behalf of his next of kin, the allegation of negligence being that the defendant had failed and neglected to provide the building, which is alleged to have been three stories in height, with the fire escapes prescribed by section 82 of the Labor Law (Consol. Laws, chap. 31; Laws of 1909, chap. 36), and that the defendant had failed to provide such building with automatic sprinkling apparatus, and, generally, that the defendant was negligent in permitting the decedent to work upon the third floor of this building under the circumstances existing at the time. For a second cause of action the complaint realleges the material allegations of the first cause of action, and sets up that a notice was served under the provisions of section 201 of the Labor "Law (as amd. by Laws of 1910, chap. 352); and a considerable part of the briefs of both parties to the action is taken up with a discussion of the question of whether the answer of the defendant is to be construed as an admission of the receipt of such notice. The answer admits, among other things, that “ defendant received a paper writing purporting to state the time, place and cause of the injuries mentioned in plaintiff’s complaint,” and “denies each and every allegation in plaintiff’s complaint contained not hereinbefore specifically admitted or controverted.” The complaint had alleged distinctly that “pursuant to statute, in such case made and provided, a notice stating the time and place and cause of the injuries hereinbefore set forth was duly served upon the defendant herein upon behalf of the plaintiff,” etc., and it was the duty of the defendant either to deny this allegation or to let it stand as admitted, and he cannot now be heard to complain because of a failure on the part of the plaintiff to introduce in evidence a copy of the notice. The allegation that the proper notice was “ duly served ” was an allegation that all of the requirements of the law in this regard had been complied with, and no equivocal pleading on the part of the defendant can be of avail. If it did not receive due notice it was bound to deny the allegation of the complaint in order to get any benefit from the failure of the plaintiff, and having admitted the receipt of a written paper purporting to be such notice, defendant must be deemed to have admitted the allegation of the complaint, and the notice was as much in the case as though it had been offered in evidence. The notice is no part of the case, except as a condition precedent to the right to the application of certain rules of law, and where the service of the notice is alleged and not denied it is unnecessary to cumber the record with the mere form. Early in the trial of the case it was ruled that this second cause of action was not properly pleaded; that the cause of action rested upon the common law; but subsequently the learned trial court recalled this ruling and held that the cause was properly pleaded under the provisions of section 200 of the Labor Law, and the case was sent to the jury upon this theory.

It will not be questioned by this court that the provisions of section 82 of the Labor Law are mandatory; that the employer owes the absolute duty of providing the fire escapes prescribed by the statute, and we think the law is now well established that if the failure of the employer to provide the fire escapes results in injury or death to the employee there is a civil liability. In other words, that where the injury is shown, and the negligence of the master to provide the fire escapes is established, and it appears that the injury would not have resulted had the fire escapes been installed as provided by law, there is a prima facie liability for damages, assuming, of course, that the employee has discharged the obligation of exercising due care in the premises. (Marino v. Lehmaier, 173 N. Y. 530, 535, 537, and authorities there cited; Koester v. Rochester Candy Works, 194 id. 92, 95; Arnold v. National Starch Co., Id. 42, 48.) Of course the prima facie case may be rebutted by evidence showing care on the part of the employer in providing equal facilities, or superior ones. (Koester v. Rochester Candy Works, supra.) We are of the opinion that the learned trial court correctly charged the law upon this point, and was well within the authorities.

There was evidence in this case that the building was three stories in height; that there were no proper fire escapes erected thereon, and this was clearly a “defect in the condition of the ways, works, machinery, or plant ” of the defendant; the statute makes it so. (Labor Law, § 200, as amd. by Laws of 1910, chap. 352.) There is abundant evidence that the plaintiff’s intestate was at work with another man, placing hides upon racks in the third story of this building, and while it is true that the last seen of him alive was at the foot of the elevator shaft on the ground floor, the work called him to the third floor, and we think the jury were entitled to draw the inference that he was either ascending or was upon the third floor when the fire intervened and prevented his escape. The question was clearly for the jury to determine as to the contributory negligence of the decedent under the provisions of section 202a of the Labor Law (added by Laws of 1910, chap. 352) as it now stands, and there was no error in the charge of the court in this regard.

The judgment and order appealed from should be affirmed, with costs.

All concurred, except Lyon, J., who dissented.

Judgment and order affirmed, with costs. 
      
       Since repealed by Laws of 1913, chap. 461, adding to Labor Law, § 79a et m2— [Rep.
     