#### Windla Hamnstrown, as Administratrix, etc., of Anselmn Hamnstrown, Deceased, Respondent, *v.*New York Contracting Company, Pennsylvania Terminal, Appellant, Impleaded with Brown & Fleming Contracting Company, Defendant.

First Department,

November 22, 1907.

Pleading — negligence — action against two defendants for distinct acts of negligence — actions must be separately stated.

A plaintiff suing two defendants to recover for negligence causing death, who charges one defendant, as master of the intestate, with negligence in failing to provide a safe place to work, competent fellow-servants, etc., and charges the other defendant, not the intestate’s master, with “ concurrent” negligence in permitting a bucket which struck and killed the intestate to become out of repair and dangerous, will be required separately to state and number the causes of action. This, because there are two causes of action based upon-distinct acts of negligence of different parties.

Appeal by the defendant, the Hew York Contracting Company, Pennsylvania Terminal, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 23d day of February, 1907, denying the said defendant’s motion to compel the plaintiff to serve an amended complaint in which the causes of action based upon the *44common law and upon the statutory liability under the Employers’ Liability Act (Laws of 1902, chap. 600) be separately stated.

*J. C.*Toole, for the appellant.

*Thomas J.*O’Neill, for the respondent.

Ingraham, J.:

The complaint alleges that on the 25th of September, 1906, the plaintiff’s intestate, while in the employ of the defendant Brown *&*Fleming Contracting Company, was struck by a bucket owned and maintained by the New York Contracting Company, Pennsylvania Terminal, and sustained injuries which resulted in his death ; that the said injuries were caused by "the concurrent negligence and wrongful acts of the defendants in that the employees of the New York Contracting Company permitted a bucket to strike and kill the plaintiff’s intestate, and that the said New York Contracting Company caused and permitted the said bucket and the apparatus thereof to be unsafe, dangerous, insecure and out of repair, and also that the Brown *'&*Fleming Contracting Company, as the intestate’s master, failed to furnish him with a reasonably safe place to work and to reasonably safeguard, inspect and maintain reasonably safe the appliances and place in connection with which the deceased was obliged to work, failed to properly light said place, employed and retained incompetent foremen and fellow-workmen, and failed to formulate, promulgate and enforce proper rules for the deceased’s safety. , ■

Although these acts of negligence are stated in the complaint to be concurring acts of negligence, it- is apparent that they were entirely distinct negligent acts, which gave separate causes of action against the two defendants. If the Brown & Fleming Contracting Company, the deceased’s employer, was negligent in the performance of its-duty in not providing the deceased with a safe place to work, it' would have been liable whether the New York Contracting Company was or was not negligent. If, on the other hand, the New York Contracting Company was negligent in allowing this bucket to fall, it was liable irrespective of any negligence of the Brown & Fleming Contracting Company. In other words, the parties did not concur in the same négligent act which caused the injury. There are, therefore, *45two causes of action alleged against two separate defendants, based upon distinct acts of negligence; the Brown *&*Fleming Company not being responsible for the. acts charged against tlie New York Contracting Company as negligent, and the New York Contracting Company not being responsible for those charged as negligent acts of the Brown & Fleming Company.

There were not, therefore, concurring acts of negligence which could impose a liability upon the two defendants upon which they could be held liable in one cause of action, "but two causes of action, based upon distinct acts of negligence of different parties. The plaintiff should be required to separately state and number them.

It follows that the order- appealed from should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

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

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.