
    Mary J. Monigan, as Administratrix, etc., of Frank J. Loven, Deceased, Respondent, v. Erie Railroad Company, Appellant.
    
      Election between a cause of action for negligence at common law and one under the Employers’ Liability Act, not required at Special Term — an application therefor should be made at the Trial Term.
    
    Where the complaint in. an action brought to recover damages resulting from the death of the plaintiffs intestate, sets up facts constituting a cause of action at common law, and also facts constituting a cause of action under the Employers’ Liability Act, a motion made at Special Term, previous to the trial, to require the plaintiff to elect between the two causes of action, will, in the absence of injury to the defendant, be denied, as, if an election is to be required, the discretion in respect thereto can best be exercised by the trial judge.
    Appeal by the defendant, the Erie Railroad Company, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Orange on the 30th day of August, 1904, denying the defendant’s motion for an order striking out the amended complaint or compelling plaintiff to elect which of two causes of action alleged in the complaint she would rely upon.
    
      
      Philip A. Porty, for the appellant.
    
      Thomas Watts, for the respondent.
    Order affirmed, with ten dollars costs and disbursements, upon the opinion of Lambert, J., at Special Term.
    All concurred.
   The following is the opinion of Lambert, J., delivered at Special Term:

Lambert, J.:

The plaintiff’s intestate was a fireman upon a locomotive of defendant. An explosion occurred, death resulted and this action is sought to be maintained to recover damages. The complaint was served setting up the alleged facts sufficient in form to recover at common law. Issue was joined. Thereafter and within the time, as matter of right, an amended complaint was served alleging in form an action at common law and one under the Employers’ Liability Act. This motion is by the defendant to strike out the amended complaint and that plaintiff be compelled to elect which of the two causes of action alleged she will abide by upon the trial.

The right of recovery for negligence was a common-law action, but extended by statute to a recovery in case of death. It may be said, therefore, that the action is founded on the Constitution and statutes. Since the decisions in Rosin v. Lidgerwood Mfg. Co. (89 App. Div. 245) and Gmaehle v. Rosenberg (178 N. Y. 147), it seems to be settled that the plaintiff has two remedies growing out of the same occurrences. The old remedy was not abolished by the enactment of the Employers’ Liability Act and the new remedy is cumulative. The allegations tendered in support of either remedy are the same except the allegation of the service of notice within the 120 days to bring the case within the Employers’ Liability Act. The two remedies arising from the same occurrences, the allegations being the same substantially, it may be assumed that the proof must quadrate therewith, hence no evidence will be required in support of one remedy over the other except the formal proof of the service of the 120-day notice.

The purpose of the present practice is to so situate the parties as to prevent surprise on the trial. In the absence of injury to the defendant, I think if an election is to be required, that the trial judge can best exercise this right of discretion.

Motion denied, without costs.

The defendant may have ten days after the entry and service of the order herein. 
      
       Laws of 1902, chap. 600.— [Rep.
     
      
       See Code Civ. Proc. § 1902 et seq.— [Rep.
     