
    Joseph Lewis, Appellant, v. Charles W. Gehlen, Respondent.
    Second Department,
    March 31, 1910.
    Master and servant—negligence — Employers’ Liability Act — notice — failure to provide safe place to work — obvious risks.
    A notice served under the Employers’ Liability Act which merely states that the. plaintiff was injured through the defendant’s negligence in failing to provide a safe place to work in that a plank upon which he was standing broke, causing him to fall, merely states a failure to perform a common-law duty and imposes no added liability under the statute. »
    
      A servant cannot recover for the failure of his master to furnish a safe place to work when the place was made unsafe in the progress of work in which the servant participated. . ,
    Where a servant participated in removing the support of a plank which suhse- ■ quently fell while he stood upon it, the danger was as obvious to him as to his master, and the latter, is not liable because the foreman gave assurance which indicated that the place was safe.
    Hirschbbbq, P. J., dissented.
    Reargument of an appeal by the plaintiff, Joseph Lewis, from a. judgment of the Supreme, Court in favor of the defendant, entered in the office of the clerk of the county of’ Kings on the 18th day of Hay,' 1908, upon the dismissal of the complaint by direction of the court after a trial at the Kings County Trial Term, and also from an order entered in said clerk’s office on the 22d day of Hay, 1908, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      Charles Goldzier \Louis J. Yorhaus with him on the brief], for the appellant. •
    
      Frederick B. Campbell [Elliott L. Perkins with him on the brief], for the respondent.
   Woodward, J.:

The notióe served under the supposed provisions of the Employers’ Liability Act (Laws of 1902, chap. 600) merely asserts that the plaintiff was injured “ through your negligence in failing to provide him with a reasonably safe and suitable place whereat to work, in that a plank on which he was standing broke and he was precipitated from one of the upper floors of the said building to the ground floor,” etp. It is now conceded that no plank broke; that the injury resulted from the removing of a “header” or beam used to shore, up the ends of cross beams on which the floor was laid, and which had been cut off for the purpose of enlarging a well hole or elevator shaft in a building which was in course of remodeling. The plaintiff testifies that he helped to remove this header, and that the accident occurred within an hour and a half of the time that the header was taken away. Obviously the notice served called attention only to a common-law right of action, and did not enlarge his'rights. .He is entitled to no greater consideration in asserting a. common-law right of action because he served a notice that he had been injured by the neglect of a common-law duty of the master, and when it appears by plaintiff's own testimony that the place was made unsafe in the' progress of the work, he himself participating in the very act which caused the accident, there is an end of his case. If the plaintiff had just come upon the work, with the header already removed, and had been directed by the foreman to go upon the projecting ends of these beams, unsupported by the header, he might be heard to say that he Was not furnished a reasonably safe place in which to perform his labors, but this was not the case; he had worked there for several months in the remodeling of this building. The header was in position when he went to work on the very day of the accident, and he himself helped to take it down in .the very work then under way, and the master certainly did not owe him such a duty of active vigilance as to come along and inspect these unsupported beams within one hour and a half of the time the plaintiff helped to remove them. This duty might have been due to a new employee coming upon the work at that time, but it was not due the plaintiff; the dangers to be anticipated were equally obvious to him as to the master, and the assurance of the working foreman that the beams ran through the wall was not an assurance on the part of the master.

The judgment and order appealed from should be affirmed.

Thomas, Bich and Carr, JJ., concurred; Hibschberg, P. J., dissented.

Judgment and order affirmed on reargument, with costs.  