
    Anna Adams, Administratrix, etc., of Ernest Adams, Deceased, Respondent, v. Post & McCord, Appellant.
    Second Department,
    December 28, 1911.
    ¡Easter and servant — negligence — negligence not pleaded — surprise at' trial. -
    Where in an action under the Employers’ Liability Act to recover damages resulting from the death of the plaintiff’s intestate, the plaintiff serves a bill of particulars in which the Only allegation of negligence relating to acts of superintendence was that the alleged" superintendent had caused the intestate to go upon an unsafe scaffolding and had failed to safeguard him while in the performance of his work, it is error for the court, in the absence of an amendment to the complaint and over the defendant’s claim of surprise, to submit to. the jury the. question of the negligence of the alleged superintendent in giving a direction ior the slackening of a rope, and to refuse to allow the defendant permission to withdraw a juror because the superintendent was not in court.
    Hirschbbrg- and Woodward, JJ., dissented.
    Appeal by the defendant, Post & McCord, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 27th day of December, 1910, upon the verdict of a jury for $7,500, and also from an order entered in said clerk’s office on the 24th day of December, 1910, denying the defendant’s motion for anew trial made upon the minutes.' ■
    
      Frank Verner Johnson, for the appellant.
    
      David C. Hirsch [John F. McIntyre with him on the brief], for the respondent.
   Burr, J.:

We think that this case was submitted to the jury upon a ground not warranted by the complaint as limited by the bill of particulars,- and that defendant was justified in being unprepared to meet the issue thus tendered.

Plaintiff’s intestate was employed by defendant as a structural ironworker. On the 7th day of August, 1907, in the afternoon of that day, he, with his coemployees, was engaged in raising the mast of a derrick from the sixteenth to the eighteenth floor of a building in process of erection in the borough of Manhattan. While they were thus engaged, as plaintiff contends, one Ike Neill, who was the foreman or “pusher” of the gang of men of which deceased was a member, gave the order to “slack that load.” Plaintiff contends that this order meant, and was understood to mean, to ease up On the fall rope so that it would be slackened; that the rope was slackened, and that the result thereof was to cause either a heavy counterweight or an iron block attached to the fall to drop suddenly. At that moment deceased was standing upon a piece of scantling which had been thrust through the open latticework ' of an iron column, and was engaged in releasing the lashing which bound the boom of the derrick to the mast. As this mass of iron dropped it struck him in; the head, causing him to fall to.the second floor below, from which fall he sustained injuries resulting in his death.

The action was brought under the Employers’ Liability Act, (Laws of 1902, chap. 600.) The complaint alleged almost every act of omission or commission upon which failure in the duty of a master to a servant could be predicated.- But so far as any allegation of negligence relating to acts of superintendence is concerned, it miust be found, if at all, in the 3d paragraph of the complaint, which alleges that decedent’s death was the result of the negligence and carelessness of “the person in the employ of said defendant whose sole and principal duty was * * * and- who exercised super-. intendence.” In the absence of any statement of the- facts constituting such negligence, it may be doubted whether’ any evidence in support of this general charge of negligence was admissible. (Pagnillo v. Mack Paving & Construction Co., 142 App. Div. 491.) But after issue joined, plaintiff served a bill of: particulars. After specifying as One act of defendant’s alleged negligence failure to furnish a safó and proper scaffold, she further stated that the acts of negligence of defendant or its superintendent, as .alleged" in the 3d paragraph of the complaint, were “that they caused and permitted plaintiff’s intestate to go upon the said unsafe, dangerous, insecure and improper scaffolding dr appliance and in failing to furnish plaintiff’s intestate with a proper and safe scaffold Upon which to work and in failing to protect and safe-guard the plaintiff’s intestate while in the performance of his work, all of which is more fully alleged in the Third paragraph of the complaint.” Under the complaint as limited by this bill of particulars, defendant was not called upon to anticipate any such claim as that upon which at the trial plaintiff, sought to establish its negligence; or to meet the issue upon which the case was sent to the jury. It may be that upon a sufficient pleading it would have been proper to submit’ to the jury the question whether Neill was a superintendent, whether, if he did give the order to slack the load, this was an act of superintendence, and whether under the circumstances here disclosed that was a negligent act causing injury from which the death of plaintiff’s intestate resulted. (Smith v. Milliken Brothers, Inc., 200 N. Y. 21.) But defendant was not called upon to meet any such issue, at least without an amendment to the complaint, and no such amendment was asked for or obtained; The fact that the evidence as to the giving of this order was received without objection on defendant’s part cannot be construed as a waiver of objection to the submission of the case' to the j ury on this theory. As the learned trial justice aptly remarked: “ Defendant might have thought that was simply one of the incidents which were connected with the accident. ” And the evidence was doubtless material and competent as showing what brought about the condition from which decedent’s fall resulted. The very moment that at the close of plaintiff’s case in opposition to defendant’s motion for a nonsuit this theory of liability was advanced defendant claimed surprise, and properly so. It appeared that Ike Neill was not in court, and after defendant’s motion to dismiss the complaint had been denied, permission to withdraw a juror by reason of his absence was asked for and denied. Defendant was not required to have him in court, or to take his testimony as to the giving of this alleged negligent order, for no such issue was tendered by the pleadings. It is true that defendant’s counsel admitted that he did not know at the time of the trial just where Neill was, although he was supposed to be in Texas. But if defendant had been advised of the importance of his testimony, it may be that it would have made more strenuous efforts to locate him and secure his testimony as a witness, or arrange to take it by commission, or to secure other testimony bearing upon that point. At any rate it was entitled to a fail-opportunity, after the complaint had been properly amended, to secure such evidence thereon as it could. When the learned trial court submitted the question of defendant’s liability to the jury, it did so in the following language: “Did the man Neill call out, as a direction to the man who had charge of the signal, Slack off that load, ’ when these men were on the mast, engaged in the performance of that perilous duty ? Did he do it at that time, and as a result of that, was that load slackened " by the engineer in the basement, and was that what caused this accident % If you find that those are not the facts, then so far as this assignment of negligence is concerned, the plaintiff cannot prevail. * * * If you find that they did, that that direction was given by this man, who was a superintendent, as an act of superintendence, and that that was a negligent direction to give at the time, in view of the consequences which might be expected from it, and as a result of that, the man was knocked from this m'ast .and killed, then you are justified in finding that, the defendant was negligent through its superintendent, in that respect.” Defendant excepted to this portion of the charge in the following language: “I except to the submission to the jury of the question as to whether [aere was a negligent order or direction given by a superintendent or person acting as superintendent, which contributed to the injuries complained of and for which the defendant may be held responsible, on the ground that no such issue is raised by the pleadings in this action.” This exception points out fatal error, and the judgment and order appealed from must be reversed and a new trial granted, costs to abide the event.

Thomas and Carr, JJ., concurred; Hirschberg and Woodward JJ., dissented.

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