
    MASLANKA, Respondent, v. AMERICAN MFG. CO., Appellant.
    (Supreme Court, Appellate Division, Second Department.
    November 27, 1914.)
    Action by Leonora Maslanka, as administratrix, etc., of Joseph Maslanka, deceased, against the American 'Manufacturing Company.
   PER CURIAM.

Defendant’s breaker machines had an outer grating or guard covering the end gears. Necessarily this grating had to be opened for oiling the cogwheel bearings. For six months before the accident the deceased had been oiling these bearings with the machine in motion. The omission to stop it during oiling was the gravamen of the notice under the Employers’ Liability Act (Consol. Laws, c. 31, §§ 200-204), and not the absence of a guard. The weight of evidence is. that, considering this gearing and its frequent changes during the day, it was not practicable while the bearings were being oiled to guard each individual cogwheel. Hence it was error to charge plaintiff’s request that, as far as the oiler’s work is concerned, the absence of any guards on the wheels and their exposure to him in his work is affirmatively a violation of the statute. Even as to a machine maintained wholly without guards, such omission is only presumptively contrary to the statute. Scott v. International Paper Co., 204 N. Y. 49, 97 N. E. 413. The judgment and order are therefore reversed, and a new trial granted, costs to abide the event. See, also, 161 App. Div. 947, 951, 146 N. Y. Supp. 1100.  