
    Carmela Pizzi and Lorenzo Divizio, Administratrix and Administrator, etc., of Rubino Pizzi, Deceased, Appellants, v, Michael B. Reid and Others, Doing Business under the Firm Name of M. Reid & Company, Respondents.
    
      Negligence — damages implied from an allegation that there are next of hin — when a complaint for the death of an employee, occasioned, by his falling through a floor, negligently permitted to be in an unsafe condition, states a cause of action.
    
    A complaint in an action to recover damages resulting from the death of the plaintiffs’ intestate, which alleges that the decedent left a widow and two brothers, need not further allege the facts constituting the damages as the law implies at least nominal damages.
    Such a complaint alleged that on a certain day the defendants, a firm of contractors, were engaged in the erection of a certain building in the city of New York; that the decedent was employed by the defendants as a laborer about the work and that “ while the deceased was performing certain work and labor so directed to be done and performed by the defendants,” they, in disregard of'their duty to provide a reasonably safe place for him to perform his woik in, “ negligently suffered and permitted the flooring of said building where the deceased was so employed to be and remain in such an unsafe and insecure condition that the deceased fell through the same to the basement of said building,” thereby sustaining injuries which resulted in his death; that “ said injuries were so sustained” and the death of the decedent was caused “solely because of the carelessness and negligence Of the defendants.”
    
      ■Held, that the complaint was not demurrable;
    That the complaint fairly alleged that the decedent was, at the precise time and place of receiving the injuries, engaged in the performance of duties to which he had been assigned by the defendants, and that he was precipitated to the basement of the building owing to the unsafe and insecure condition of the flooring negligently caused and permitted by the defendants personally.
    Van Brunt, P. J., and Ingraham, J., dissented.
    Appeal by the plaintiffs, Carmela Pizzi and another, as administratrix and administrator, etc., of Rubino Pizzi, deceased, from an interlocutory judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 5th day of February, 19054, upon the decision of the court rendered after a trial at the New York Special Term, sus taining the defendants’ demurrer to the amended complaint.
    
      Amos PL. JEvcms, for the appellants.
    
      Carl 8. Petrasch, for the respondents.
   Lattghlin, J".:

This is a statutory action to recover damages for the death of plaintiff’s intestate, and the demurrer is upon the ground that the complaint fails to state facts sufficient to constitute a cause of action. The complaint shows that letters of administration were duly issued to the plaintiffs and that decedent left a widow and two brothers.. If the decedent’s death was due to the wrongful act of the defendants, it was unnecessary to further allege the facts constituting the damages, for the law implies at least nominal damages. (Quin v. Moore, 15 N. Y. 432; Kenney v. N. Y. C. & H. R. R. R. Co., 49 Hun, 535; 2 N. Y. Supp. 512; Thomas v. Utica & Black River R. R. Co., 6 Civ. Proc. Rep. 353.) The complaint specifically alleges that the injuries which resulted in decedent’s death were received without any fault or want of care on his part. The real question is, therefore, whether it is sufficiently alleged that the injuries were caused by the negligence of the defendants. The complaint shows that on the 15th day of March, 1901, and for some time prior thereto, the defendants were copartners in the general contracting business and engaged in the erection of a certain building or power house at or near 74th Street and the East River” in the city of Hew York; that decedent was in their employ on said work as a laborer; that at the time and place aforesaid, “ while the deceased was performing certain work and labor so directed to be done and performed by the defendants,” they, in disregard of their duty to provide a reasonably safe place for him to perform his work in, “ negligently Suffered and permitted the flooring of said building where the deceased was so employed to be and remain in such an unsafe and insecure condition that the deceased fell through the same to the basement of said building,” thereby sustaining injuries which resulted in his death ; that “ said injuries were so sustained” and the death of decedent was caused solely because of the carelessness and neg: ligence of the defendants.”

In determining the sufficiency of the allegations of this complaint it must be borne in mind that the defendants are individuals and not a corporation. If it appeared that a corporation were defend; ant, or that these defendants furnished suitable material and competent help and delegated the work to a superintendent or general foreman; perhaps the fair inference would be that the injuries arose from the negligence of co-servants in performing a. detail of the work, for Which the master would not he responsible. (Perry v. Rogers, 157 N.Y. 251.) This rale, however, would not relieve these defendants from their personal negligence. On demurrer, the complaint is to be sustained if the facts alleged and those which may be implied therefrom by reasonable and fair in tendment are sufficient to constitute a cause of action. (Coatsworth v. Lehigh Valley R. Co., 156 N. Y. 451.) The complaint, we think, fairly alleges that the decedent was, at the precise time and place of receiving the injuries, engaged in the performance of duties to which he had been assigned by the defendants, and that he was precipitated to the basement of the building owing to the unsafe and insecure condition of the flooring, negligently caused and permitted by the defendants personally. • It is not to be inferred from the fact that the building was in process of erection that the flooring was rendered unsafe by the co-employees of the decedent, for the charge is that the defendants negligently suffered and permitted ” it “ to be and remain ” in an unsafe, and insecure condition. Negligence is really a conclusion of fact, and it is sufficiently charged in this complaint to successfully resist a demurrer. (Oldfield v. N. Y. & Harlem R. R. Co., 14 N. Y. 310; Edgerton v. N. Y. & Harlem R. R. Co., 39 id. 227, 230; Leeds v. N. Y. Telephone Co., 64 App. Div. 484; Jackman v. Lord, 56 Hun, 192; 9 N. Y. Supp. 200; McCarthy v. N. Y. C. & H. R. R. R. Co., 24 N. Y. St. Repr. 924.)

If the facts constituting the negligence are not alleged with sufficient definiteness to enable the defendants to prepare for trial they have a remedy either by a motion to make the complaint more definite and certain or for a bill of particulars, but the facts necessarily admitted by this demurrer would, we think, entitle the plaintiff to recover.

The interlocutory judgment should, therefore, be reversed, with costs, and the demurrer overruled, with costs, but with leave to defendants to answer upon payment of the costs of the appeal and of the demurrer.

Patteksoh and Hatch, JJ., concurred; Yah Bkuht, P. J., and Ihgkaham, J., dissented.

Ingbaham, J. (dissenting) :

The complaint alleges that on or about the 15th day of March, 1901, the defendants, as contractors, were engaged in the erection of a building or power house in the city of ¡New York, and that the plaintiffs’ intestate was in their employ as a laborer in arid about said work; that “ the defendants, not regarding their duty, on or about said date, to wit, the 15th day of March, 1901, at said place, while the deceased was performing certain work and labor so directed to be done and performed by the defendants, negligently suffered and permitted the flooring of said building where the deceased was so employed to be and remain in such an unsafe and insecure condition that the deceased fell through the same to the basement of said building, receiving therefrom and thereby such injuries as resulted in his death on said 2d day of April, 1901, as aforesaid.” This seems to be the only allegation upon which the defendants’ liability was founded. The building was in course of construction, and the fact that flooring in such a building was in such an unsafe and insecure condition that an employee of a person engaged in constructing the building fell through the same to the basement would not seem to state any fact upon which liability to the employee could be predicated. It is not alleged that the plaintiffs’ intestate was directed by defendants to work upon the floor that was left insecure ; or that the work that he was employed to do required that he should work on this floor. ¡Nor is any fact alleged to show that leaving a floor in a building in course of construction in such a condition that a workman in the building fell through it was a neglect in the performance of any duty than the employer owed to his employee. The general allegation that the injury was caused solely because of the negligence and carelessness of the defendants is an allegation of a conclusion and not of a fact from which negligence can be inferred. There is no allegation that any floor, scaffold, or other place upon which the plaintiffs’ intestate was at work gave away by reason of the defective structure or improper materials; and unless a mere allegation that the defendants are liable to the plaintiffs because of defendants’ negligence is sufficient, this complaint is bad. Facts have to be alleged; not mere conclusions; and where the facts alleged do not show a breach of a duty that the defendants owed to the deceased, there is no cause of action alleged under the statute- for causing the death . of another.

: I think the judgment appealed from should be affirmed.

Van Brunt, P. J., concurred.

Interlocutory judgment reversed, with costs, and demurrer overruled, with costs, with leave to defendants to answer upon payment of costs of appeal and of the demurrer.  