#### Joseph Bovi, Respondent, *v.*Max Hess and Jacob Hess, Appellants.

First Department,

January 10, 1908.

Master and servant — Employers’ Liability Act — insufficient notice — foreman not exercising superintendence — negligence of fellow-servant — failure to instruct as to obvious danger. .

A letter written by an employee to Ms master stating that bn 'a certain date, while working in the masters factory at a mixing machine, he was injured through the fault of the foreman, and asking a life position as compensation, is wholly insufficient as a notice to enable him to maintain an action under the Employers’ Liability Act.

One employed as foreman to operate a dough mixer with the assistance of three or four other employees, having nothing to do with the other workmen in the factory and without authority to employ or discharge the men working under him, there being a general superintendent present, is not engaged in the duty of superintendence within the meaning of the Employers’ Liability Act. He is merely the fellow-servant- of those operating the same machine. A superintendent within the meaning of the act must be one “whose sole or principal duty is that of superintendence,” and mere incidental authority to exercise some minor supervision over others is not enough to render the employer liable under the act.

Such person, although styled a foreman, being in fact a fellow-servant of others working with him, there can be no recovery at common law for injuries received through his negligence.

ISTegligence cannot be based upon a failure to instruct as to the dangers of starting a machine when a servant’s hand is in a position to be caught by knives when the danger was obvious. . . -

Appeal by the defendants, Max Hess and another, 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 21st day of February, 1907, upon the verdict of a jury for $5,000, and also from' an order entered in said clerk’s office on the 18th day of February, 1907, denying the defendants’ motion for a new trial made upon the minutes.

*Frank V.*Johnson, for the appellants.

*Martin T.*Manton, for the respondent.

Lambert, J.:

The plaintiff brings this action to recover damages of his employer for personal injuries sustained while engaged in cleaning out a cer*390tain mixing machine used in the defendants’ confectionery factory. *The action was commenced Toy the service of a summons cmd complaint on the Mth day of November, 1903.*In the complaint served at that time there was no suggestion of any liability under the provisions of the Employers’ Liability Act, but shortly before the case came on for trial plaintiff, secured a change of attorneys, and an amended complaint was served' in which it was alleged, in addition to the common-law averments in the original complaint, that the injuries .were “caused by reason of certain defects in the condition of the ways, works and machinery connected with and used in the business of the defendants which arose from and had not been discovered or remedied owing to the neglect of the defendants or of some person in their service and intrusted- by them to see that the ways, works and machinery" were in proper condition, and by reason of the neglect of some person in the service of the defendants, intrusted with the [exercise of] superintendency, whose sole or prim cipal duty was that of superintendent,- or of some person acting as superintendent with the authority and consent of the defendants, and also by reason of the carelessness and negligence, faults and omissions of the defendants, their servants and employees.” It was then averred that.“ heretofore and on or about the 25th day of October, 1903, plaintiff served upon the defendants a notice in writing stating the time, place and cause of said injhry.”

The purpose of the pleader was to bring his action within the provisions of the Employers’ Liability Act, and this was the theory on which the case was submitted to the jury, although the pleadings were broad enough to state a cause of action at common law, and there were some suggestions in the charge to the jury which would indicate that the learned court recognized that there was room for finding a verdict under the common-law duty of the master to give proper instructions to a green hand in the operation of the machine which produced the injury.

It is important at the outset to determine whether the plaintiff has fulfilled the requirements of the statute in reference to employers’ liability for the negligence of one intrusted with superintendence, for upon this must depend in a large measure the disposition to be made of this ease on appeal. Chapter 600 of the Laws of 1902 is entitled “ An Act to extend and regulate the liability-of employers,” *391and while the title is not controlling, it is important to be kept in mind in construing the statute; it is “ to extend * . * * the liability of employers; ” it is to enlarge the common-law obligations of those who become employers, and. under well-established rules a change in the common law, taking away rights, is to be strictly construed. It may be said that it gives rights to the employee, and is, therefore, to be liberally construed^ to effect that result, but where it is necessary to take from one man to give to another, it would seem that the common law, the growth of ages of. careful development of the rights of man, should not be changed farther than is required to meet the letter of the statute. Section 1 of the act provides in its 2d subdivision that if the accident is due to “the negligence of any person in the service of the employer entrusted with and exercising superintendence whose sole or principal duty is that of superintendence, or in the absence of such superintendent, of any person acting as superintendent with the authority or consent of such employer,” he shall have the same rights as though he were not an employee. This is clearly imposing a burden uponpmployers in addition to those recognized by the common law, and the Legislature in giving this additional right of action imposed a condition precedent which it is the duty of courts to preserve in its integrity. The provision of section 2 is that “ no action for recovery of compensation for injury or death under this act shall be maintained unless nqtice 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 injured, or by some- one in his behalf,” etc. Itwill be noticed the limitation of time within which the action may be brought, under the act, is fixed at one year, while in the action authorized by section 1902 of the Code of Civil Procedure the limitation is two years, and the general limitation in actions of this character is fixed by section 383 of the Code of Civil Procedure at three years, thus indicating that the Legislature did not intend to merge this action with the common-law right of action, and that persons who sought to charge employers with liability beyond the scope of the .common law must act promptly, that the rights of employers might be conserved and their liabilities kept *392within bounds. The necessity of such a rule is made manifest in the case .now before us, where the person who is alleged to have produced the injury, and who is claimed to have been the superintendent, has gone without the jurisdiction, and his whereabouts is unknown, thus exposing the defendants to the danger of being .called upon to answer for a negligence which might be disproved if the witness could be found.

, What has the plaintiff done toward complying with this provision requiring notice of the time, place and cause of the injury? Ho such written notice and no copy of such notice is contained in the record; both of the defendants, who were in a position to know, ■ testify without qualification that they never received any such notice, and the plaintiff’s case rests upon the testimony of one Caridi, who was permitted to state the contents of a letter alleged to have been written by him, at the request of the plaintiff, three years before. According to this witness he wrote a letter about as follows: “ Dear Sir: While working on the 20th of September, 1903, in your factory, being in the employ of your factory, and working at the mixing machine, I was injured, and through the injury I had sufferings and an opeiatioh at the hospital, where they took my finger off. Therefore, I ask for a life position where I can earn an honest living.” Under leading questions the witness said that in this letter (which was not addressed to either of the defendants individually, but to Hess Brothers) he stated that wliiile he, plaintiff, was working under this employment,. “ he was hurted with a inixing machine, or something of that kind, while working at it, and the blame was of the foreman. Therefore, he asked them for.a life position.without going to any more trouble, something on this subject. That is the best of my recollection.”

Clearly the plaintiff did not write this letter for the purpose of giving the notice required by the statute, but for the purpose of asking for a position. There is no statement in the letter as given which tells the place where .the accident occurred, except that it was stated to be in the defendants’'factory, and, perhaps, that it was located on West Thirtieth street, wherever that might be. The defendants may have had a dozen factories, and the notice that “ the ' blame was" of the foreman ” was not a notice of the cause of the injury through the negligent act of a person “ entrusted with and *393exercising superintendence, whose sole or principal duty is that of superintendence.” “ Cause,” in the sense it is used in the statute does not mean the conclusion of the injured person, but a statement of the facts out of which the injury arose; “cause” is that which produces or effects a result; that from which anything proceeds, and without which it would not exist. (5 Am. *&*Eng. Ency. of Law [2d ed.], *773.)*The fair intent of the statute is that the person giving the notice required as a condition precedent to the maintenance of the action shall state the facts showing the cause of the injury, not his conclusion as to who was to blame for the same, and while it would not be reasonable to require that this notice should have all the technical accuracy of good pleading, we are persuaded that no one would think of holding, under ordinary circumstances, that a man had notice of the cause of an accident from anything that is alleged to have been stated in this letter.' The statute itself provides that “ no notice under the provisions of this section shall be deemed to be invalid or insufficieñt solely by reason of any inaccuracy dn 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,” , but this does not go to the extent of nullifying the requirement that the notice shall give the cause of the injury, which clearly means something more than the vague suggestion that “ the blame was of the foreman.” The notice should, to comply with the statute, at least give some idea of how the foreman was to blame, if we may assume that the negligence of a foreman would be equivalent to the negligence of the superintendent described in the statute. It should tell, in some way, how the accident happened, what was done, who did it, and the result, that the employer may determine his liability and preserve the evidence necessary to the proper defense, if he have a defense. This court, in considering a notice less open to criticism than the one now under review, say that “ it must be regarded as now, well settled that a notice to constitute the basis for an action under the Employers’ Liability Act must fairly apprise the employer that the claim is made under the statute, and point out the negligence from which the injury arose. * * * The notice in question gave the defendant no information with respect to the manner in which the plaintiff sustained injury.” *394*(Ortolano*v. *Degnon Contracting Co.,*120 App. Div. 61.) That case, with its sustaining authorities cited, seems to us 'conclusive of the question involved, in so far as the notice is concerned. There was. no evidence of the service of such a notice as the statute requires, and as the case was submitted to the jury upon the theory that it. might find that there was a cause of action under the Employers’ Liability Act, the verdict cannot stand. The court said to plain-. tiff’s counsel: “You have made out no. common-law liability in my opinion.” And upon counsel objecting to special findings, the court said : “ We will go to the jury then, and I will exercise my discretion.” The defendants excepted to the denial of their motion to dismiss upon the ground, among others, that “ the proof is insufficient to establish a cause of action within the provisions of the Employers’ Liability Act; that no sufficient proof of service of the notice required under that' act has been adduced,” and to the determination of the court to submit the case to the jury at all, so that the question was fairly up for review, and to now say that there was a common-law cause of action proved and found by thp jury when the only question left open to that body was the liability of the defendants. under the Employers’ Liability Act would be to permit the defendants, in effect, to be deprived of their property without the benefit of a trial by jury, for that body could not have had that issue under consideration.

The suggestion of counsel, on the authority of *Sheehy*v. *City of New York (160 N.*Y. 139), that a substantial compliance with the statute requiring notice is sufficient, would be pertinent if this was an action in which the Legislature had attempted to limit the common-law rights of the plaintiff by requiring a notice as a condition precedent to the assertion of a'common-law right. In such a case it is proper to give the plaintiff the benefit of a liberal construction, but where the plaintiff’s rights have been enlarged, on condition that he shall comply with certain regulations prescribed by the statute, and the., rights of the defendant must have been encroached upon, there is no occasion for such a concession, and the books are full of cases in which the requirement even of these limiting statutes that notice of the cause shall be given is held to be not satisfied without telling the facts substantially as they have occurred.

The judgment and order appealed from should be reversed,

*395McLaughlin, J. (concurring):

I concur in the opinion of Mr. Justice -Lambebt in so far as he holds that the notice claimed to have been served by the plaintiff was defective and wholly insufficient to enable him to maintain the action under the Employers’ Liability Act (Laws of 1902, chap. 600).

I am also of the opinion that even if it be held that the notice was sufficient, then the evidence did not establish that the plaintiff’s injury was caused “by reason of the negligence of any person in the service of the employer entrusted with and exercising superintendence whose sole or principal duty is that of superintendence.” Sommers, the person whose negligent act is alleged to have caused the accident, was employed by the defendants, not as a superintendent, but as a servant. His duties were to operate the machine called the dough mixer and rollers used in the manufacture of lozenges, with the assistance of three or four other employees, among whom was the plaintiff. He had nothing whatever to do with the other workmen in the factory, and had no authority to employ or discharge men working with him. The defendants, at the time, did have in their employ a superintendent, one Hausrath, whose sole or principal duty was superintending or supervising the work of other employees. Hausrath was in the factory at the time the accident occurred, and was then engaged in the performance of his duties as superintendent. Sommers was in no sense a superintendent. He was engaged in the defendants’ business, together with other employees, with incidental authority to supervise the work of his assistants, one of whom was the plaintiff. A superintendent, within the meaning of the Employers’ Liability Act, must be one “whose sole or principal duty is that df superintendence and mere incidental authority to exercise some minor supervision over others is not enough to render the employer liable under the act. *(McConnell*v. *Morse I. W. & D. D. Co.,*187 N. Y. 341; *Abrahamson*v. *General Supply & Construction Co.,*112 App. Div. 318; *Quinlan*v. *Lackawanna Steel Co.,*107 id. 176; *Hughes*v. *Russell,*104 id. 144.)

Dor do I think a cause of action was established at common law. Sommers was a coservant of the plaintiff. They were both engaged in a common employment, which was the manufacture of candy, and for his negligence defendants were not liable. The fact that *396Sommers had been designated as the foreman of the persons working with him did not change this relation. *(Lynch*v. *Shanley Co.,*112 App. Div. 305; *Cullen*v. *Norton,*126 N. Y. 1.)

The danger of injury, in case the machine should be started while the plaintiff’s hand was in a position where it could be caught by the knives of the mixing machine, was SO' obvious and apparent that instruction was unnecessary. This being so, negligence' could not be based on a failure to give instructions with reference to it. *(Crown*v. *Orr,*140 N. Y. *450; White*v. *Wittemann Lith. Co.,*131 id. 631.)

The judgment and order"appealed from should be reversed and a new trial ordered, with costs to appellants to abide event.

Patterson, P. J., Houghton and Scott; JJ., concurred.

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