
    George Muench, Respondent, v. Terry and Tench Company, Appellant.
    Second Department,
    January 24, 1913.
    Master and servant — negligence — Employers’ Liability Act — insufficient notice — appeal — complaint uniting common-law action with action under statute.
    A notice under the Employers’ Liability Act of 1902 which merely sets out facts justifying a common-law action for negligence but not stating any negligent act on the part of a superintendent or any defect in ways, works or machinery, is insufficient.
    
      Where the complaint of a servant against his master alleges a cause of action both at common law and under the Employers’ Liability Act and the court erroneously overruled the defendant’s objection to the sufficiency of the notice, a judgment for' the plaintiff will be reversed even though the evidence be sufficient to require the submission of the master’s common-law liability to the jury, where the master offered evidence which, if believed by the jury, would have relieved it from liability.
    Appeal by the defendant, the Terry and Tench Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 23d day of February, 1911, upon the verdict of a jury for $8,000, and also from an order entered in said clerk’s office on the same day denying the defendant’s motion for a new trial made upon the minutes.
    
      E. Clyde Sherwood [Charles Capron Marsh and Amos H. Stephens with him on the brief], for the appellant.
    
      Thomas J. O’Neill [L. F. Fish with him on the brief], for the respondent.
   Rich, J.:

This appeal is by the defendant from a judgment in favor of the plaintiff in an action for negligence. The complaint alleges a cause of action under the common law and also under the Employers’ Liability Act.

The.action was tried upon the theory that plaintiff was injured as the result of negligence of the foreman in charge of the work upon which the plaintiff was engaged, in directing plaintiff and another employee of defendant to cut out iron rivets with an improper tool which needlessly exposed plaintiff to danger. The notice alleges, “the cause of my injury was a piece of steel which flew into my eye, destroying the sight thereof, and the cause of this casualty was the fact [that] you furnished defective tools and cutters in and in connection with which to work, and failed to furnish proper bagging and other material to prevent the flying of pieces of steel while rivets were being cut, and this casualty was further caused by your failure to furnish me with a chisel bar, and in that you had no adequate saw to do, the work, and that the saw that you furnished was worn, so that its teeth would not cut the angle where I was working, and that your not having Said saw or chisel bar required me to take a position below the rivet, thus causing the additional hazard and danger of pieces of steel being driven towards my eye and into my eyes.” The defendant objected to the receipt of this notice in evidence upon the ground of its insufficiency. The objection was overruled and an exception taken.

It will be observed that the notice fails to mention any negligent act on the part of a superintendent or to suggest any defect in the ways, works or machinery. Its allegations are confined to matters which go to make up a common-law cause of action for negligence, and it cannot be made the basis of a cause of action under the Employers’ Liability Act of 1902, as re-enacted in the Labor Law of 1909,, which was in force when the accident happened and when this action was brought. (See Laws of 1902, chap. 600; Labor Law [Consol. Laws, chap. 31; Laws of 1909, chap. 36], art. 14.) As was said in Simpson v. Foundation Co. (132 App. Div. 375; affd., 201 N. Y. 479): “The employee is given an enlarged right of action against the master for the negligent act of a superintendent, or for defects in the works, ways or machinery, and this enlarged right is given on condition that the employee, within 120 days of the accident, shall give the employer notice, not generally, but specifically, of an act of omission or commission on the part of a superintendent, or of a defect in the works, ways or machinery.” (See, also, Finnigan v. N. Y. Contracting Co., 194 N. Y. 244; Logerto v. Centred Building Co., 198 id. 390; Welch v. Waterbury & Co., 136 App. Div. 315; Lewis v. Gehlen, Id. 855; Beauregard v. New York Tunnel Co., Id. 834; Davenport v. Oceanic Amusement Co., 132 id. 368; Kwiatkowski v. Nichols Copper Co., 152 id. 663.)

The plaintiff contends that his notice is valid under the authority of Bertolami v. United Engineering & C. Co. (198 N. Y. 71), and several other cases which he cites, all of which .are distinguishable from the case under consideration. In the Bertolami case the court placed its decision upon the express ground that the liability stated' in the notice, being its failure to inspect, safeguard and keep safe the place wherein the intestate was working, the omission of duty was of necessity primarily that of a representative who had superintendence over, and control of, the conditions which prevailed when the accident happened, and, therefore, sufficiently complied with the rule adopted in the Finnigan case. The case was submitted to the jury upon the theory that a recovery might be had under the Employers’ Liability Act. The effect of the charge of the learned trial justice was, therefore, that a verdict might be found for the plaintiff upon a cause of action which he was not entitled to enforce, and although no exception was taken to the charge, the notice was put in evidence over defendant’s objection and exception. No liability under the statute was shown, and the application of the statutory law gave the plaintiff an advantage to which he was not entitled. While it may be that the evidence is sufficient to have required the submission of defendant’s common-law liability to the jury, we cannot say that the result would have been the same, as defendant offered evidence which tended to show that it had provided chisel bars for the use of its employees, and that they were upon the premises and easily accessible at the time of the accident, which would have relieved the defendant from liability if the jury had believed it. (Davis v. Gas Engine & Power Co., 148 App. Div. 791.)

The judgment and order must be reversed and a new trial granted, costs to abide the event.

Jenks, P. J., Thomas, Carr and Woodward, JJ., concurred.

Judgment and order reversed and new trial granted, costs to abide the event. .  