
    Olaf Nielsen, Respondent, v. George A. Just Company, Appellant.
    First Department,
    November 5, 1915.
    Master and servant — negligence — service of notice under Labor Law-condition precedent to action — proof of service of notice —when foreman not negligent in directing removal of heavy steel beams from truck.
    The service of the notice under section 201 of the Labor Law, prior to the commencement of an action under said statute, is a condition precedent to the maintenance of such action.
    Where the complaint alleges that such a notice was served “ on or about ” the day of the commencement of the action, and this allegation is put in issue by the answer, and it is admitted on the trial that the notice was served by mail, and that the same person served the summons and complaint on the same day, but it does not appear from where the notice was mailed, or that it would have reached the defendant before the time when the summons and complaint were served, the proof of service of the notice prior to the commencement of the action is insufficient.
    A foreman in charge of men engaged in removing heavy steel beams from a truck by shoving or rolling them over the ends of the bolsters and letting them drop to the ground, has a right to assume that the men, being familiar with the work, will” so move the beams that they will leave both bolsters at the same time, and that they will be on their guard to avoid being injured, and the employer cannot be charged with negligence because such foreman directed the men when they appeared to be in a position to move a beam from the bolster to “shove" or to “ roll it.”
    
      The defendant was not liable because it failed to furnish a derrick for the unloading of the beams, for it appeared that all contractors on occasions unloaded without a derrick, and that there was nothing inherently dangerous in rolling the beams from the trucks.
    Appeal by the defendant, George A. Just Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 20th day of January, 1915, upon the verdict of a jury for $1,500, and also from an order entered in said clerk’s office on the 22d day of January, 1915, denying defendant’s motion for a new trial made upon the minutes.
    
      Edward J. Redington, for the appellant.
    
      A. Mitchell Leslie, for the respondent.
   Laughlin, J.:

This action is predicated upon the statute which renders an employer liable for the negligence of any person in his service intrusted with any superintendence or of any person intrusted with authority to direct, control or command any employee in the performance of duty. (Labor Law [Consol. Laws, chap. 31; Laws of 1909, chap. 36], § 200, subd. 2, as amd. by Laws of 1910, chap. 352.)

We are of opinion that the action cannot be maintained for the 'reason that plaintiff failed to show service of the notice required by the provisions of section 201 of the Labor Law, prior to the commencement of the action. The action was commenced .on the 20th day of September, 1913, and it is alleged in the complaint that the notice was served on or about ” that day. This allegation is put in issue by the answer; but even if it were admitted, it does not appear therefrom that notice was served before the commencement of the action. It was admitted on the trial that the notice was served by mail, and that the person who served it served the summons and complaint on the same day; but it does not appear from where it was mailed, and it was not shown that in the ordinary course of mail it would have reached the defendant before the time when the summons and complaint were served, which is the time prescribed by the statute for a notice so served becoming effective. (Labor Law, § 201, as amd. by Laws of 1910, chap. 352.) The service of the notice was a condition precedent to the maintenance of such an action. (Johnson v. Roach, 83 App. Div. 351.)

Moreover, we are of opinion that the recovery could not be sustained on the merits. It is manifest from the allegations of the complaint, the evidence and the charge that the verdict was rendered on the theory that the defendant’s foreman was guilty of negligence in giving an order to its employees, including plaintiff, while they were engaged in removing steel beams from a truck, or on its failure to furnish a derrick for the removal of the beams, or both. The defendant was about to erect steel columns and trusses for a building. The beams were thirty feet in length and weighed from 800 to 4,000 pounds. They were hauled to the site on trucks, upon which they rested on bolsters, with short iron pins or points to keep them from sliding off when the trucks were in motion. The evidence shows that the plaintiff and his fellow-workmen had unloaded about six loads of beams at the same place and in the same manner during the two or three days preceding the accident. They unloaded the beams by shoving or rolling them over the ends of the bolsters and letting them drop to the ground. At the time the accident occurred the plaintiff and these other workmen were engaged under the supervision and direction of a foreman in unloading a truck. They had unloaded two or three beams and were in the act of unloading one of the two beams remaining on the truck. Two men were at the front and plaintiff and another were at the rear, where the beam projected some six feet beyond the bolster, which was considerably more than they projected in front, and consequently they rested on the rear with more weight on the bolster. It was necessary for them to roll them over the pins. The accident was due to the fact that the front end was rolled or shoved off first, which threw the rear end, of which plaintiff had hold, up and it struck him on the head. According to some of the witnesses, the rear end struck the spike in the bolster and it was retarded thereby. The claim that it was the duty of the defendant to furnish a derrick is based on the testimony to the effect that it was the general custom in building to erect a derrick before the steel was brought to the building site, and to use the derrick in unloading; but the evidence also shows that all contractors, on occasions, unloaded without a derrick. It -is manifest that derricks are used, for the reason that thereby the beams may be swung or hoisted to a place •where they are accessible, and this results in a saving of both labor and time. There is nothing inherently dangerous in rolling beams off the bolster; and ordinarily the men could easily avoid injury from that manner of doing the work. The negligence with which the defendant is charged on account of the conduct of the foreman is predicated on a direction which he gave to the men, when they appeared to be in a position to move the beam from the bolster, to “shove” or to “roll it.” He had a right to assume that the men, who were familiar with the work, would so perform it that the beam would leave both bolsters at the same time, and that they would be on their guard to avoid being injured should that not be done. We are, therefore, of opinion that a cause of action was not shown, and that the court erred in denying the defendant’s motion to dismiss the complaint.

It follows that the judgment and order should be reversed and the motion to set aside the verdict granted, and the complaint dismissed, with costs.

Ingraham, P. J., McLaughlin, Clarke and Scott, JJ., concurred.

Judgment and order reversed, with costs; motion to set aside verdict granted and complaint dismissed, with costs.  