
    Otto Davis, by Emma Davis, his Guardian ad Litem, Respondent, v. The Broadalbin Knitting Company, Appellant.
    
      Under a complaint alleging a cause of action under the Employers' Liability Act, proof cannot be made of a common-law liability.
    
    Where the complaint in an action, brought by an employee against an employer to recover damages for personal injuries sustained by the employee, states a cause of action based wholly upon the Employers’ Liability Act (Laws of 1902, chap. 600), the employee cannot recover upon proof of a common-law cause of action, if seasonable objection is made thereto and no amendment of the complaint is asked for or allowed.
    Appeal by the defendant, The Broadalbin Knitting Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the. clerk of the county of Fulton on the 18th day of February, 1903, upon the verdict of a jury for $1,200, and also from an order entered in said clerk’s office tin the 13th day of February, 1903, denying the defendant’s motion for a new trial made upon the minutes.
    
      Lewis E. Carr and Edward W. Douglas, for the appellant.
    
      Henry V. Borst and Florence J. Sullivan, for the respondent.
   Houghton, J.:

The plaintiff was injured while in the employ of the defendant, and brings this -action to recover damages.

The complaint alleges the giving of a notice of the time, place and cause of the injuries to the plaintiff, in the manner and within the time provided by the Employers’ Liability Act (Laws¡of 1902, chap. 600), and that defendant was negligent in omitting its duty of seeing .that its “ways, works and machinery” were proper and in proper condition. There is a further allegation that the “ garnet machine,” by which plaintiff was injured, was insufficiently protected and was improper and insufficient for the purposes for which it Was used.

The injury occurred in November, 1902, after the Employers’ Liability Act became a law, and the complaint must, we think, be construed as stating a cause of action founded upon that act.

The plaintiff failed to prove the cause of action which he alleged.

A garnet machine is one used for picking and cleaning wool, and consists of a series of picking cylinders standing about twenty-two inches from the floor. It was the custom in defendant’s mill for an employee to crawl under the machine and lie on his back and clean these cylinders from underneath while they slowly revolved. It was while doing this that the plaintiff’s foot was caught between the cylinders and he was injured.

There was no' proof that this machine was not in proper repair, or that it was improper or insufficient for the purpose for which it was designed, or that the plaintiff was injured because it was insufficiently protected. There was no obligation on the part of the defendant to guard .these cylinders, against an employee, the contact with which could be had only by crawling under the machine. The negligence of the defendant, if there was any negligence at all, consisted in its failure to prescribe a safer mode of cleaning the cylinders, or in failing to warn the plaintiff, who was under fifteen years of age, of the danger in the work, or in permitting an employee of such immature years to engage in such hazardous business. And this was the theory, against defendant’s objection that such a cause of action was not alleged in the complaint, upon which the case was tried and submitted to the jury. No amendment of the complaint that it conform to the proof, or that it be amended by appropriate allegations to permit such proofs, was asked for upon the trial. Whether such amendment would have been proper, or whether since the Employers’ Liability Act an employee must bring his action for injuries under that act, or whether that act takes away from him his common-law right of action, we do not now decide. It is sufficient for the present case that against the defendant’s objection, duly taken, the plaintiff recovered a judgment upon a common-law cause of action when his complaint set forth a cause of action wholly under the statute. His judgment is founded on a cause of action wholly separate and distinct from that alleged in his complaint and cannot be sustained on appeal. (Southwick v. First National Bank of Memphis, 84 N. Y. 420; Truesdell v. Sarles, 104 id. 167; Reed v. McConnell, 133 id. 426.) Irrespective of whether or not an employee still retains his right to bring a common-law action for injuries against his employer notwithstanding the Employers’ Liability Act, if he chooses to bring his action under that act his proofs must establish a cause of action thereunder. He cannot plead within the precise terms of the act and then be permitted to prove, if seasonable objection be made, acts of negligence wholly outside his complaint. (Smith v. Lockwood, 13 Barb. 209; Woolsey v. Trustees of Ellenville, 69 Hun, 489; Hoffman v. Third Ave. R. R. Co., 45 App. Div. 587; Coyle v. Third Ave. R. R. Co., 18 Misc. Rep. 9.)

The. judgment and order must be reversed and a new trialgranted, with costs to the appellant to abide the event.

All concurred.

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