
    Charles Gmaehle, as Administrator, etc., of Charles Gmaehle, Deceased, Respondent, v. Morris Rosenberg and Barnet Aronson, Appellants.
    
      Negligence—notice of the accident must he given in all cases of defective scaffolding or mechanical contrivances or appliances — constitutionality of chapter 603 of the Laws of 1903, requiring notice of the injury.
    
    Chapter 603 of the Laws of 1903, entitled- ” An act to extend and regulate the liability of employers to make compensation for personal injuries suffered by employees,” is a general act which applies to every action brought after its passage by a servant against his master to recover damages for personal injuries arising from the master’s failure to supply proper scaffolding or other mechanical contrivances or proper or safe appliances for the use of the servant, whether the action is brought under the common law or under any statute existing when the act was passed.
    The provision of the act making the service of notice of the time, place and cause of the injury upon the employer within 130 days after the occurrence of the accident a condition precedent to the maintenance of the action only affects the remedy, and consequently does not violate section 18 of article 1 of the Constitution, providing, “ The right of action now existing to recover damages for injuries resulting in death shall never be abrogated, and the amount recoverable shall not be subject to any statutory limitation,” or destroy any right of action conferred by the common law or the statutes.
    Motion by the plaintiff, Charles Gmaehle, as administrator, etc., of Charles Gmaehle, deceased, for a reargument of an appeal by the defendants Morris Rosenberg and another from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 22d day of December, 1902, denying the defendants’ motion for an order requiring the plaintiff to give security for costs.
    The appeal was decided in favor of the defendants at the March term of the Appellate Division, and the opinion handed down at that time is reported in 80 Appellate Division, 541.
    
      
      David Steckner, for the appellants.
    
      Morris Hillquit, for the respondent.
   Per Curiam:

Our conclusion in this case, as appears from the opinion handed down March 6, 1903, was that the sufficiency of the complaint was to be determined by reference to chapter 600 of the Laws of 1902, entitled An act to extend and regulate the liability of employers to make compensation for personal injuries suffered by employees,” and that the failure to allege the giving of notice as required in the 2d section of that statute was a fatal omission, because the giving of such notice is a condition precedent to the maintenance of the action.” It is now insisted that the complaint was not framed under that law, but under section 18 of the Labor Law (Laws of 1897, chap. 415), which statute provides that an employer “ shall not furnish or erect or cause to be furnished or erected ” for employees, scaffolding, hoists, stays, ladders or other mechanical contrivances which are unsafe, unsuitable or improper.”

The question, therefore, presented is whether a complaint drawn upon the theory that an employer has violated section 18 of the Labor Law is sufficient (with respect to actions arising after chapter 600, Laws of 1902, became effective) without an allegation of the giving of the notice which the latter statute provides shall be given. In other words, the question arises whether a complaint in an action brought by an employee against an employer for damages arising from his neglect to supply safe, suitable and proper scaffolding, hoists, stays, ladders or other mechanical contrivances, which fails to allege the giving of notice to the employer before commencement of the action, is defective.

Our view was, and still is, that chapter 600 of the Laws of 1902 is a general act applicable to all actions brought, whether under the common law for negligence or for violation of any statute existing when the act was passed, where the complaint is based upon the negligence of the employer in supplying inadequate and unsafe scaffolding or other appliances to his employee and in the use of which the latter suffered damage. That the act is general, and, therefore, applicable to all such actions appears, we think, from the very reading of the law which in its 1st and 2d sections provides: Where after this act takes effect, personal injury is caused to an employee * * *

“ 1. By reason of any defect in the condition of the ways, works or machinery connected with or used in the business of the employer * * * 2. * * * The provisions of law relating to actions' for causing death by negligence so far as the same are consistent, with this act, shall apply to an action brought by an executor or administrator of a deceased employee suing under the provisions of this act.

“ § 2. 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.”

Much stress is laid upon the use in these provisions of the statute of the words under the provisions of this act ” and under this act,” the insistence being that they are limiting words and make the act apply only to actions in which a plaintiff seeks to avail himself of the benefits of that particular law. Taking into consideration, however, the language of the title, An act to extend and regulate the liability of employers,” together with the sweeping and general language employed in the 1st section, we think that the purpose of the statute was to include every cause of action for negligence brought by a servant against his master occurring after the passage of the act, and wherein recovery was sought because of defects in scaffolding and other mechanical contrivances or failure to supply proper and safe appliances for the use of the servant. That the act was so intended to apply whether such cause of action was based upon the right existing at common law to recover damages or under the provisions of some former statute, more clearly appears from section 5, which provides: “ 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.” This would be meaningless and unnecessary if the contention could be upheld that the law of 1902 was applicable only to actions brought by persons suing under it.

It but remains to briefly consider the other contention made, that to construe this law as general and as applicable to all actions brought to recover for injuries arising from defective appliances supplied to employees, would render the statute unconstitutional. To support this contention reference is made to article 1, section 18, of the State Constitution, which reads: The right of action now existing to recover damages for injuries resulting in death shall never be abrogated, and the amount recoverable shall not be subject to any statutory limitation.”

The requirement, however, that notice shall be given in all such actions does not abrogate the right of action, but merely affects the remedy. There was no right of action for damages for a death at common law. That right was originally conferred by statute (Laws of 1847, chap. 450) and has been continued by section 1902 of the Code of Civil Procedure. It does not, therefore, take away any common-law right of action. Nor does it destroy the right of action secured by section 1902 of the Code or for violation of section 18 of the Labor Law (Laws of 1897, chap. 415). The requirement that notice shall be given does not take away the right of action or abrogate it, but such provision is in the nature of a statute of limitations, which merely affects the remedy without destroying the right. (Hulbert v. Clark, 128 N. Y. 295; Wheeler v. Jackson, 41 Hun, 410; affd., 105 N. Y. 681; Mertz v. City of Brooklyn, 33 N. Y. St. Repr. 577; affd., 128 N. Y. 617.)

Notwithstanding the failure of the plaintiff, therefore, to call to our attention upon the argument the provisions of section 18 of the Labor Law and of section 18 of article 1 of the State Constitution, upon which he relies to sustain his complaint and as grounds for a reargument, we think that the disposition made of the question presented upon the appeal was right, and that this motion for a reargument should be denied, with ten dollars costs.

Present — Van Brunt, P. J., Patterson, Ingraham, McLaughlin and Laughlin, J J.

Motion denied, with ten dollars costs.  