
    Alfred Palmieri, Appellant, v. S. Pearson & Son, Incorporated, Respondent.
    Second Department,
    October 22, 1908.
    Master and servant—Employers’ Liability Act — notice—knowledge by master — pleading — clerical error in answer—failure to promulgate rule — when foreman fellow-servant.
    The notice of the cause of an injury required by the Employers’ Liability Act is for the purpose of enabling the master to investigate the claim and adjust it or resist it, as may seem advisable.
    A notice which merely states that the plaintiff while in the defendant’s employ met with injuries inflicted through negligence in failing to supply a safe place to work, and by reason of the defective condition of “ways, works and machinery ” used in the defendant’s business, and because of the incompetency of the foreman, superintendent and fellow-servants and by reason of a failure to comply with chapter 600 of the Laws of 1902, is insufficient.
    Although the allegation in a paragraph of the complaint nuinbered 9 as to the due service of the notice was not specifically denied by the answer by reference to that number, it will be deemed to have been denied where it is apparent from the answer that the denial to the 8th paragraph could only have been intended as a denial to the 9th, especially where the objection was not raised at trial so that the defendant could have moved to amend.
    Even if it be assumed that a defect in a notice is cured if the master through other means have knowledge of the time, place and cause of the accident, there can be no recovery in the absence of proof establishing such knowledge.
    The failure of a master to make rules is not negligence unless it appears from the nature of the business that he should in the exercise of reasonable care have foreseen and anticipated the necessity therefor. Thus, where a laborer pushing a work car upon a track with the aid of fellow-servants was injured in the foot by a steam crane coming from behind, the master who employed a person to give signals for the crane to come forward is not liable at common law, where there is no proof as to what rules should have been made.
    In a common-law action to recover for injuries so received, a foreman giving signals for a crane to move forward is acting as a fellow-servant.
    
      Appeal by the plaintiff, Alfred Palmieri, from a judgment of the Supreme Court in favor of the defendant, entered in the office, of the clerk of the county of Queens on the 21st day of August, 1907, upon the dismissal of the complaint by direction of the court after a trial at the Queens County Trial Term, and also from an order entered in said clerk’s office on the 19th day of July, 1907, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      Martin T. Mantón, for the appellant.
    
      Hugh A. Bayne, for the respondent.
   Jenks, J.:

The action is by servant against master for negligence causing personal injuries. At the close of the case the trial court dismissed the complaint on the ground that the notice required under the Employers’ Liability Act was insufficient in that it omitted to give the cause of the injury. The notice read: “ You will please take notice that on or about the 28th day of September, 1905, I was in the employ of your company and on said day, while in your employ, I met with injuries which were inflicted through the carelessness and negligence of your company at your place of business at Long Island City, State of Hew York, on said day, because of your carelessness and negligence in failing to supply me with a safe place in which to work and by reason of the defective condition of the ways, woi'ks and machinery connected with and used in your business ;■ and the incompetency of your foreman or superintendent in charge of your said place of business at Long Island City; and because Of the carelessness and negligence of inefficient and incompetent employees, and because of your failure to comply with chapter 600 of the Laws of 1902.” Certain requirements of the notice are'to the énd that the employer is-pointed to the specific act or omission charged against him, that he may look into it and adjust the claim or resist it as may seem advisable. This provision is just to the master in view of the extension of his liability by the statute beyond the common law. (Glynn v. N. Y. C. & H. R. R. R. Co., 125 App. Div. 186; Kennedy v. N. Y. Tel. Co., Id. 846 ; Bovi v. Hess, 123 id. 389; Finnigan v. N. Y. Contracting Co., 122 id. 712; Barry v. Derby Desk Co., 121 id. 811.) The notice in question but apprises the master that the plaintiff has a cause.of action for his neglect of obligations which are described in such general terms as to afford no clew whatever to the particular act or omission.

But the plaintiff contends that the defendant could not raise the question of the sufficiency of the notice for the reason that the plaintiff’s plea that he had duly served a notice stating the time, place and cause of the injury, was not denied. This plea was contained in a paragraph of the complaint numbered 9. The defendant made answer to each paragraph of the complaint in terms save the 9th. But it is plain that the defendant intended to deny the allegations of that paragraph. For the 7th paragraph of the answer reads: “ Seventh. It denies the allegations contained in the eighth paragraph of the complaint;” and the 8th paragraph reads: “Eighth. It denies that it has any knowledge or information sufficient to form a belief as to the allegations contained in the eighth (sic) paragraph of'the complaint.” It is not to be presumed that the pleader intended to make, in the same breath and in inconsistent form, two denials of the 8th paragraph; but rather that by a mere lapse the word “eighth” was repeated when ninth was intended, possibly because that paragraph of the answer was numbered eighth. It does not appear that this point was ever raised or suggested at trial, but on the other hand that the plaintiff opened his case by reading the notice in evidence. Had the point been raised, the trial court should undoubtedly have permitted an amendment, and I tfciak that we may regard it as having been made. (Fallon v. Lawler, 102 N. Y. 228. See, too, Code Civ. Proc. §§ 723, 721,, subd. 5.)

The appellant further contends that even if the notice were faulty, yet, as knowledge of the casualty was obtained by the defendant from other sources, the defendant cannot object to the notice. I am not clear that proof that the master, aside from the statutory notice, acquired such knowledge of the time, place and cause of the casualty, as must be stated in such a notice, would cure a defective notice. In Shea v. Lowell (132 Mass. 189) Morton, Ch. J., for the court says: “ It would violate the provisions and defeat the purposes of the statute if the plaintiff were permitted to supply the deficiencies of the written noticé by proof that the city or its officers had oral information from her, or from. any other source, of the time, place and cause of her injury, and the court rightly rejected the evidence offered by her for this purpose. The notice cannot he partly written and partly oral; it must be wholly in writing, and its sufficiency is to be determined by the court. The court therefore refused to give the first, second, and fourth instructions requested by the plaintiff.” If the contrary . were true, then the question would be shifted from whether the employee had complied with a statutory prerequisite to whether the employer had knowledge from outside sources of the particulars of the casualty. It seems to me that the employer has the right to rely upon.compliance with the statute absolutely, rather than compliance with the statute provided he also be ignorant of the time, place and cause of the injury. (See, too, Bovi v. Hess, supra, 394.) It is true that in Hejfron v. Laohawanna Steel Co. (121 App. Div. 35) the learned court, assuming that this question was properly raised, decided that the exact knowledge of the particulars obtained elsewhere could eke out the notice. But if the learned court was right in that case in the enunciation of the principle, it cannot obtain in this case, as the proof was wholly insufficient to establish knowledge of the particulars of the accident by the master. For all of the evidence upon this subject is as followsOne of. the witnesses testified that after the accident he put the plaintiff on the witness’ back, carried him upstairs where the doctor was, together with the foreman of the gang, and that several other people came ; that the doctor wanted to know the plaintiff’s name and where he lived, and they ” asked the witness where he lived and how the accident happened. Something was written down and a paper was signed. The signal man testifies that it was not necessary to report the accident, because his “ superior officers ” ran there and took the man’s name. But he did not know whether they took any statements. They ” did not ask him. “ They ” said something to the engineer. They ” asked the witness how it happened and he said he did not know. '

Even conceding that we can examine the case in the aspect' of the common law, which is open to question upon this record (see Glynn v. N. Y. C. & H. R. R. R. Co., supra, at 188), I think that the plaintiff failed to establish a cause of action under it. It is contended that the defendant was at fault for not keeping in force sufficient rules for the protection of the plaintiff. The version of the plaintiff is that he, with other laborers, was pushing a work car upon a track in the defendant’s yard. His fellow-workers pushed from the side of the car and the plaintiff from its left-hand back corner. A crane driven by steam which, had been 15 or 20 feet behind the car moved forward, and its broad gauge wheel that extends over the track ran over the plaintiff’s foot. But it appears in the plaintiff’s case that the defendant had a regular signal man to give signals for the machine to come forward, and it is not suggested in the evidence what other or additional rules should have been made and promulgated. The failure to make rules is no proof of negligence “ unless it appears from the nature of the business in which the servant is engaged that the master, in the exercise of reasonable care, should have foreseen and anticipated the necessity of such precautions.” (Morgan v. Hudson River Ore & Iron Co., 133 N. Y. 666.) The theory of the plaintiff is that Cahill, a foreman of his gang, gave the signal for the crane to move onward. Even upon this theory, in the common-law aspect of the case, the act was that of a fellow-servant. (Corcoran v. D., L. & W. R. R. Co., 126 N. Y. 673 ; Wooden v. Western N. Y. & Penn. R. R. Co., 147 id. 508; Ryan v. Third Ave. R. R. Co., 92 App. Div. 306.)

The judgment should be affirmed, with costs.

Present — Woodward, Jenks, Hooker, Gaynor and Rich, JJ.

. Judgment and order unanimously affirmed, with costs.  