Barry v. Derby Desk Co.

Lambert, J.: The plaintiff brings this action to recover damages for personal injuries alleged to have been sustained through the negligence óf the defendant. The defendant was engaged in the construction of a factory for the Knickerbocker Chocolate. Company on Thirty-first street, borough of Manhattan. On the 16th day of December, 1903, the plaintiff was employed by the defendant, and directed to report to the foreman at the chocolate company’s building. He went to work upon a scaffolding, aiding in putting up a thin bale covering known as facia. While thus engaged he was directed by the foreman to go to another part of the scaffolding to aid two men, Law and Johnson, who were taking down some of the. work which had been improperly placed. While thus employed, and just as a section of the facia, weighing about 100 pounds, was released from the ceiling, a plank of the scaffolding on which the plaintiff and ■Ms two fellow-employees were standing, broke. This precipitated the plaintiff to the floor, about-four and one-half feet below, and he sustained the injuries for which he is seeking recovery here. It would seem -that under the provisions of the Labor Law (Laws of 1897, chap. 415, §§ 18, 19, as atnd. by Laws of 1899, chap. 192), as construed in Stewart v. Ferguson (164 N. Y. 553) and in Schapp v. Bloomer (181 id. 125), the negligence of the.defendant was shown sufficiently to -justify the verdict, and the evidence in the case as to the detail of the work, by means of which it was attempted to be established that the defendant’s foreman had been guilty of negligence in the construction of the scaffolding, was at least hot necessary. The theory of the plaintiff, however, was that his case came witliin the provisions of the Employers’ Liability Act, and in support of this cause of action "he introduced in evidence, over the objection and exception of'the defendant, a copy of a notice served upon the defendant and the principal question involved in this [812] appeal is the sufficiency of such notice. The statute (Laws of 100.2, chap. -600, § 2) provides that no action for the recovery of damages for-personal in juries 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 * * * after the occurrence of the accident causing the in jury or death.” This notice is required, to- be in writing,' and the notice introduced in evidence and found in-the record does not state the cause of the injury within the letter or spirit of the. statirte. The notie’e" reads as follows : “ Please take notice that 1 have-a claim -against ■ you for personal .in juries .sustained by me ón the 18th! day of December, 1903, while in ypnr employ ón a building, situated ou West 31st Street, between 9th and 10th Avenues,'in. the Borough of Manhattan, ¡New York City, through your negligence in failing to furnish me with a safe., proper and suitable ¡hace to perfonn'tlie work which I was engaged to do by-you; in failing to furnish me with proper ahd safe appliances with which .to do the work which I ■ was engaged, to do by you ahd in failing to furnish me with competent fellow-employees.” Assuming that the cause of the injury might he stated in'its legal effect, the only, suggestions of negligence in this notice are' such as are involved in a common-law action of negligence/ ahd in an action at common law there is no occasion for giving any notice whatever, ■ except in - those actions .against municipal.', corporations where the statute has madé such notice" necessary as a condition precedent. The notice does not, therefore, in any view we may. take of it, give the employer any information, of the cause "of the-injury which would impose liability under the ¡Employers’ Liability Act,, and it lias b'een held by this court that the notice, “ in order tp permit the bringing of .'an. actioii únder the statute, should.-.be snflicient to apprise him that liability is claimed because of the statute and"under its provisions.”'; (Chisholm v. Manhattan Railway Co., 116 App. Div. 320, 324.) In other - words, the notice should have informed the defendant of the claim of negligence on the part of its. foreman or superintendent, if it:- was intended to hold < the master liable for such negligence, and the giving notice of alleged pegligeiice under the common law, does "not fulfill the purposes,of. thé. Legislature in -requiring notice to the employer where it is-intended to hold him to a larger liability; The authorities which [813] plaintiff cites, and which undoubtedly justify the contention that •statutes requiring notice of an accident resulting in personal injuries are satisfied with substantial compliance, are such as relate to municipal corporations, where the common-law rights of - the individual are infringed or limited. In no case, where .the rights of the individual are enlarged beyond the common-law right, has it ever been held that the statute is open to liberal construction or substantial compliance, so far. as we have been able to discover, and this court is thoroughly committed to the rule which we have pointed out abdve. • . This being true, it was clearly error to admit the notice over the defendant’s objection, and the error was- intensified by the charge of the court. It is true that there was no objection to the charge, but the defendant had raised the question of liability under the Employers’ Liability Act by the objection and exception to the admission of the notice in evidence, and this is sufficient to protect its interests upon this appeal. The notice in evidence, in connection with the charge of the court that the negligence of defendant’s foreman could be imputed to the defendant,, could not have failed to prejudice the case in the minds of- the jurors, and the judgment, because based upon, an .erroneous theory, which the defendant sought to obviate, should be reversed. There are other questions involved in this-.appeal, but as a new trial must be had, it is not necessary to consider them here, for there is no reason to anticipate that they will appear upon- a new trial. The judgment and order appealed from should be reversed and a new trial granted, with costs to the appellant to abide the event. Patterson, P. J., concurred.'