
    Maurice O’Donnell, Plaintiff, v. Elmira Foundry Company, Defendant.
    Supreme Court, Chemung County,
    February 25, 1929.
    
      
      Mortimer L. Sullivan, for the plaintiff.
    
      Henry, Denton & McCann, for the defendant.
   Senn, J.

This is a common-law action wherein the plaintiff seeks to recover damages by reason of a disease of the lungs and other respiratory troubles contracted by him while in the defendant’s employ and alleged to be due to iron particles and other foreign substances in the air. The defendant moves to dismiss the complaint on the ground that the complaint does not state facts sufficient to constitute a cause of action in that the conditions in defendant’s mill, of which the plaintiff complains, were so obvious as to constitute an assumed risk.

The question is not free from difficulty. I think the case differs from Wager v. White Star Candy Co. (217 App. Div. 316) and other cases cited by the defendant as applicable here, in that it does not appear that the conditions complained of were so obvious that it can be said as matter of law that he must have known of them. The trial may reveal a state of facts of contrary import, but as the matter now appears I do not think it can be held that the complaint fails to state a cause of action.

' The allegation that the disease with which the plaintiff is affected is not a disease or infection naturally arising from his employment, may be construed to mean that it would not have arisen from the employment under proper conditions.

Motion denied.  