
    SPECTOR v. FELDMAN et al.
    (Supreme Court, Appellate Division, First Department.
    April 4, 1913.)
    Master and Servant (§ 264)—Action for Injuries—Issues—Insufficiency of Notice.
    Where the evidence in a servant’s action for injuries established a sufficient cause of action at common law, and it was submitted to the jury without reference to the Employer’s Liability Act (Consol. Laws 1909, c. 31), or any liability of defendant thereunder, the insufficiency .of the notice under the act was not ground for reversal.
    [Ed. Note.—For other cases, see Master and Servant, Cent Dig. §§ 861-876; Dec. Dig. § 264.*]
    McLaughlin and Dowling, JJ., dissenting.
    Appeal from Trial Term, New York County.'
    Action by William Spector against Esther Feldman and others. From a judgment on the verdict, and from an order denying motion for a new trial, defendants appeal. Affirmed.
    
      Argued before INGRAHAM, P. J., and McLAUGHLIN, LAUGHLIN, SCOTT, and DOWLING, JJ.
    Edward M. Grout, of New York City, for appellants.
    Charles Goldzier, of New York City, for respondent.
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
   PER CURIAM.

Judgment and order affirmed, with costs, on the ground that, although the notice was insufficient under the Employer’s Liability Act (Consol. Laws 1909, c. 31), yet the evidence established a sufficient cause of action at common law, and it was submitted to the jury without reference to the Employer’s Liability Act, or any liability of the defendants thereunder.

McLAUGHLIN, J.

I dissent on the ground that the action was tried upon the theory that it was brought under the Employer’s Liability Act, and the notice, was not sufficient to bring it within that act (Simpson v. Foundation Co., 201 N. Y. 479, 95 N. E 10, Ann. Cas. 1912B, 321; Logerto v. Central Building Co., 198 N. Y. 390, 91 N. E. 782), and also upon the ground that the evidence shows no negligence on the part of the defendants.

DOWLING, J.

I dissent upon the ground that the case was tried upon the theory of the Employer’s Liability Act, and that the notice was insufficient under that act.  