
    DUFFY v. OTIS ELEVATOR CO.
    (Supreme Court, Appellate Division, Second Department.
    October 12, 1909.)
    Appeal from Trial Term, Westchester County.
    Action by James Duffy against the Otis Elevator Company. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.
    Affirmed.
    Argued before HIRSCHBERG, P. J.. and GAYNOR, BURR, RICH, and MILLER, JJ.
    Frederick B. Campbell (Henry S. Curtis, on the brief), for appellant.
    Thomas F. Curran, for respondent
   PER CURIAM.

Judgment and order affirmed, with costs.

BURR, J.

I dissent from the affirmance of this judgment It is conceded that the original complaint was not sufficient to enable plaintiff to prove the cause of action upon which he subsequently recovered. The amendment stated an entirely new cause of action, based upon alleged statements of a person acting as superintendent of the defendant. At common law, and in the absence of the employer’s liability act (Laws 1902, p. 1748, c. 600), the complaint as amended would not have justified a recovery against the defendant. The notice which was served under that act was insufficient to permit a recovery upon the ground stated in the amended complaint; and, as this was the only ground upon which the plaintiff obtained a verdict, the judgment entered on that verdict should be reversed, and a new trial granted.  