
    Mary M. Johnson, as Administratrix, etc., of William J. Johnson, Deceased, Respondent, v. Edward Roach, Appellant.
    
      Negligence—the unexplained falling of a scaffold is prima facie evidence of a violation of the Labor Lato—the Employers’ Liability Act of 1902 is applicable to the case—notice of the injury must be given before the smice of the complaint and must be alleged therein—a complaint, served in an action discontinued, is notice in a second action.
    
    In an action brought to recover damages resulting from the death of the plaintiff's intestate, a bricklayer employed by the defendant in the construction of a building, in consequence of the falling of a scaffold upon which he was working, it appeared that the scaffold, which was more than twenty-five feet above the ground, was built in the following manner: Beams were thrust out from windows and rested upon the lintels and in some cases upon loose bricks. Upon these beams boards were laid, upon which, in turn, horse scaffolds were erected. The structure was not firmly bound together, but notwithstanding this fact eight bricklayers were put- to work upon it.
    
      Held, that the unexplained falling of the scaffold was prima facie evidence of a violation by the defendant of sections 18 and 19 of the Labor Law (Laws of 1897, chap. 415, amd. by Laws of 1899, chap. 192), prescribing the manner in which scaffolds erected for the use of workmen shall be constructed.
    The Employers’ Liability Act (Laws of 1902, chap. 600) applies to an action brought to charge an employer with liability for the death of a servant because of the alleged negligence of the employer in furnishing the servant with an unsafe scaffold in violation of the provisions of the Labor Law and of the common law.
    Under that statute it is necessary for the plaintiff to allege in his complaint and to prove upon the trial that notice of the time and place and cause of the injuries was served on the employer as required by the statute.
    The objection that the complaint is defective, because it fails to aver the giving of the statutory notice, cannot be taken by the defendant for the first time upon an appeal from a judgment in favor of the plaintiff.
    
      A motion by the defendant, at the close of the plaintiff’s proof, to dismiss the complaint on the ground that she had “not shown facts sufficient to sustain her cause of action,” raises the question whether the plaintiff has proved the giving of the required notice, and if she has not, the denial of the motion constitutes reversible error.
    In such a case, the complaint in the action, which was served upon the defendant within four months after the occurrence of the accident, and embodied all of the matters which are required to be stated in the statutory notice, cannot be considered as such notice in order to support a judgment rendered in favor of the plaintiff.
    Semble, that if, after the service of such a complaint, the action had been discontinued and a new action brought within the time specified in the statute, the complaint first served might, upon the trial of the action, be considered as the statutory notice.
    Appeal by the defendant, Edward Roach, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 5th day of February, 2903, upon the verdict of a jury for $7,500, and also from so much of an order entered in said clerk’s office on the 4th day of February, 1903, as denied the defendant’s motion for a new trial made upon the minutes.
    
      Joseph N. Tuttle, for the appellant.
    
      Isaae M. Kapper, for the respondent.
   O’ Brien, J.:

The action is by an administratrix to recover for personal injuries causing the death of her husband. The complaint, which was veri* fled September 16, 1902, and served the following day, states that the plaintiff’s intestate was on the 12th day of July, 1902, employed as a bricklayer by the defendant at his building on Riverside Drive and Ninety-seventh street, and by the fall of a scaffold upon which he was working was precipitated to the ground and from the injuries thus received he died on July 15, 1902.

The averments of the complaint imputing negligence to the defendant are two-fold in character, negligence in violation of the statute in the construction of the scaffold and general negligence in the failure to furnish a safe and proper scaffold or place for the plaintiff to work. The statute is chapter 415 of the Laws of 1897, known as the Labor Law, which, among other things, provides in section 18 the specific manner in which a scaffold more than twenty feet from the ground shall be constructed, such as that it shall have a safety rail, bolted, secured and braced; and in section 19 (as amd. by Laws of 1899, chap. 192) that scaffolding “ shall be so constructed as to bear four times the maximum weight required to be dependent therefrom or placed thereon when in use * * *.” With respect to these provisions it was said in Stewart v. Ferguson (164 N. Y. 556) where an accident similar to that in the case at bar occurred : “ Prima faoie it (the scaffold) was so constructed as to bear less than one-fourtli the weight required by section 19. Its fall, in the absence of evidence of other producing cause, points to the omission of the duty enjoined by the statute upon the defendant to the plaintiff in its construction, and points to it with that reasonable certainty which usually tends to produce conviction in the mind in tracing events back to their causes and thus creates a presumption. It is circumstantial evidence, and if it does convince the jury, it justifies their verdict.”

In the present case the defendant gave no evidence and it would follow from the authority cited that the fall of the scaffold unexplained was prima facie evidence of violation of the statute. It may be noted, furthermore, that it here appears that the scaffold was more than twenty-five feet from the ground, being at the third story, and that it consisted of a horse scaffold resting upon beams, which would support- the inference that there was no “ safety rail, bolted, secured and braced.”

Upon the question of negligence there was sufficient to take the case to the jury. It appears that beams were thrust out from windows and rested upon the lintels, and in some cases upon loose bricks and upon these beams were laid boards on which, in turn, rested horse scaffolds. This work was done by laborers of the defendant, and with it the bricklayers of whom the plaintiff was one had nothing to do, they being directed to-work upon this scaffold thus provided. The evidence tends to show that the structure was not firmly bound together, and yet upon it, in a limited space, some eight men were put to work at bricklaying. In Griffen v. Manice (166 N. Y. 188), which contains an interesting discussion of the doctrine of res ipsa loquitur, it was said, referring to a case which arose long before the Labor Law: “ In Green v. Banta (16 Jones & Spencer, 156) a workman was injured by the breaking down of a scaffold. In a suit against liis master, the court charged : The fact that the scaffold gave way is some evidence—it is what might be called prima facie evidence — of negligence on the part of the person or persons who were bound to provide a safe and proper scaffold.’ This charge was held correct by the General Term of the Superior Court of the city of New York and the decision affirmed by this court. (97 N. Y. 627.)”

We find no difficulty then in concluding that a sufficient basis was established for the finding of the jury that the defendant here was negligent.

The more serious question presented by the appellant is whether the plaintiff’s recovery is barred through failure to allege in her complaint and prove upon the trial the giving of the notice required by chapter 600- of the Laws of 1902. The complaint does not specifically aver compliance with that law nor was the subject mentioned on the trial. The defendant, however, at the close of the plaintiff’s case moved to dismiss the complaint on the ground that she had “not shown facts sufficient to sustain her cause of action;” and the exception to the ruling refusing to dismiss the complaint enables the defendant to raise the question on this appeal.

The statute referred to (Laws of 1902, chap. 600) took effect July 1, 1902, and is entitled “An act to extend and regulate the liability of employers to make compensation for personal injuries suffered by employees.” It provides in section 2 that “ no action for recovery of compensation for injury or death under this act shall be maintained unless notice of the time, place and cause of the injury is given to the employer within one hundred and twenty days and the action is commenced within one year after the occurrence of the accident causing the injury or death. The notice required by this section shall be in writing and signed by the person in jured or by some one in his behalf. * * * In case of his death without having given such notice, hi’s executor or administrator may give such notice within sixty days after his appointment but no notice under the provisions of this section shall be deemed to be invalid or insufficient solely by reason of any inaccuracy in stating the time, place or cause of the injury if it be shown that there was no intention to mislead and that the party entitled to notice was not in fact misled thereby.” In section 5 it is provided: Every existing right of action for negligence or to recover damages for injuries resulting in death is continued and nothing in this act contained shall be construed as limiting any such right of action, nor shall the failure to give the notice provided for in section two of this act be a bar to the maintenance of a suit upon any such existing right of action.”

As we read section 5 it no more than recognizes that every existing light of action for injuries resulting in death shall be preserved and provides that as to existing rights of action the act shall not be retroactive. As the law went into effect July 1, 1902, and this, accident occurred July twelfth of that year, we may exclude section 5 from further consideration.

The employee in this case died as the result of his injuries, and the duty would thus under the act devolve upon his administratrix, the plaintiff, of giving the required notice. The action was begun in September, 1902, which was within" the year following the accident, as required by the statute, and also within the 120 days which is the maximum time within which thereunder notice should be given the employer of “ the time, place and cause of the injury.” It will thus be seen that within such time the service of the complaint itself apprised the defendant of the time, place and cause of the injury. It is insisted, however, that in order to plead a good cause of action it is essential that the complaint contain an averment of the giving of the notice, and proof that it was so given is essential to a recovery.

This court has recently, in Gmaehle v. Rosenberg (80 App. Div. 541) said: “ Chapter 600 of the Laws of 1902 in terms makes the giving of notice a condition precedent to the maintenance of the action; and a statement that such notice was given is made an essential averment of the cause of action. The fact that such notice was given should, therefore, be alleged in the complaint.” In that case, also, reference was made to authorities wherein it has been held, under a statute requiring notice to be given cities of the State, that failure to allege in the complaint compliance with such statute rendered it defective.

The defect in the complaint in the present action was not pointed out or taken advantage of either by demurrer or otherwise before trial. Upon the trial the evidence was all received and no suggestion was made that the complaint was defective, the fact being no doubt that the defendant had no knowledge of the law of 1902 or of its requirements. Having proceeded to trial, therefore, on the ■complaint, we need only inquire into whether chapter 600 of the Laws of 1902 is applicable, and if applicable whether the proof shows that the law was complied with.. As stated, the exception to the ruling refusing to dismiss on the ground that “ plaintiff has not shown facts sufficient to sustain her cause of action,” raises the question of the sufficiency of the proof.

We think that chapter 600 of the Laws of 1902 is applicable, and for reasons which we have had occasion to express in our opinion recently in the case of Gmaehle v. Rosenberg (supra), and in our memorandum handed down on the motion for a reargument in the same case at this term of the court. (83 App. Div. 339.) We therein held that in this class of cases the giving of notice as required by the law of 1902 is a condition precedent to the maintenance of the action, and it is, therefore, necessary both to allege and to prove it. The same rule has been followed in Massachusetts in Veginan v. Morse (160 Mass. 143), which was an action brought under the Employer’s Liability Act (Laws of Mass. of 1887, chap. 270), which requires the giving to employers of notice, and wherein it was held that if the.notice of time, place and cause of the injury was not served until after the action was commenced by service of the writ, then, although the notice is left at the defendant’s house on the same day the writ is dated, the action cannot be maintained, the court, in the opinion by Judge Holmes, saying: “ In statutes like that under which two counts of this action were brought, the requirement of notice is held to make a condition precedent to the right to bring an action, not on a nice interpretation of the particular words used, but upon a general view of what the Legislature would be likely to intend * * *. The ruling that the action could not be maintained upon the two counts in question was correct.”

As said, no objection was taken to the sufficiency of the complaint, and that question is not before us, and had,the plaintiff proved the giving of notice prior to the commencement of the action this judgment could be affirmed. As part of the cause of action, however, it was essential that she should prove it; and the motion to dismiss upon the ground that the plaintiff had not made out a cause of action raised the question of the sufficiency of the proof, and none having been given that the notice as required by the statute had been served, the motion should have been granted instead of denied.

It being our duty where possible to affirm a judgment, we have considered the question of whether the service of the complaint itself was a service of the notice. The complaint contains all the facts which the statute says shall be contained in the notice; and the form of notice is not essential, the real purpose of the statute being that the plaintiff shall within the time stated' furnish to the employer the necessary data. If, however, we are to regard, as we well might, the complaint as the notice, the difficulty would still confront us that notice was not given until the action was commenced. If after serving the complaint and finding that the action was not maintainable because of failure to give the prior notice, the action was discontinued and thereafter within a year from the occurrence of the accident a new action was commenced wherein the complaint alleged that the prior notice had been given, and' in proof thereof it was shown that within the 120 days a notice in the form of this complaint had been served, this, we think, would be a sufficient compliance with the statute. But where no prior notice has been given and no proof thereof furnished on the trial and the point is raised that the proof is insufficient, we fail to find any escape from the conclusion that the omission is fatal to the plaintiff’s right to recover in this action.

Upon the ground, therefore, that there was no proof of the giving of notice before the commencement of the action, the judgment and order must be reversed and a new trial ordered, with costs to the appellant to abide the event.

Van Brunt, P. J., Patterson, Ingraham and McLaughlin, JJ., concurred.

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