#### Arthur Sherman, Respondent, *v.*Mason & Hanger Company, Appellant.

Second Department,

May 8, 1914.

Master and servant — negligence — Labor Law—injury caused by starting stationary engine without signal — when superintendent acts as fellow-servant — Employers’ Liability Act — service of notice on foreign corporation—when variance between notice and proof is immaterial.

Where in an action against a master brought under the Labor Law it appears that the plaintiff, while standing within a steel form which was moved from place to place in a tunnel by means of a cable operated by a stationary engine, was injured by reason of the fact that the defendant’s superintendent, who temporarily took the place of the engineer, started the engine without the customary signal from the plaintiff, the act complained of cannot be considered a detail of superintendence, for at the time the superintendent was performing the duties of a fellow-servant. Hence, there was no question for submission to the jury.

A notice under the Employers’ Liability Act may be served upon a foreign corporation at its principal place of business within this State.

Although - the notice served under the Employers’ Liability Act stated that the injuries were caused by the negligence of the defendant’s superintendent in ordering, directing or permitting the form to be moved without notice, there was no material variance because the proof showed that the superintendent *himself*started the engine.

Appeal by the defendant, Mason & Hanger Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Orange on the 5th day of May, 1913, upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s office on the 7th day of May, 1913, denying the defendant’s motion for a new trial made upon the minutes.

*Herman S. Hertwig [George W. Martin*with him on the brief], for the appellant.

*R. H. Barnett,*for the respondent.

Jenks, P. J.:

This is an action by servant against master for negligence, and the master appeals from a judgment entered upon the verdict of the jury in favor of the servant. The defendant used a steel form in its construction of a tunnel. This form rested *328upon wheeled tracks, so that it could be moved from place to place. The traction power consisted of a cable, drawn around a drum by a stationary engine worked by' compressed air furnished by a pipe. As there was danger of interference between the pipe and parts of the steel form when the form was moved, it was necessary for a workman or workmen from time to time to clear the pipe from such obstruction before the moving. While plaintiff was at this work, standing inside of the form, the form was drawn along the tunnel. His version is that in consequence of such movement he was thrown against one of the trucks and was injured.' Usually the form was moved or stopped or moved again upon signals which emanated from the plaintiff (or from those in that kind of work), which signals were conveyed by signalmen tb the engineer of the said stationary engine. The case for plaintiff is that on this occasion the engineer started the engine in the absence of signals. The evidence of both parties is that the engine on this occasion was started by Bateman, who was the undisputed superintendent of the defendant, and who for the nonce had taken the place of the absent engineer.

The court charged the jury, without objection or exception or request for any other or different submission, that the evidence presented no question of negligence save under the Labor Law; that the sole question of negligence for determination was whether the accident happened by some negligence of Bateman in a matter of control, direction or command, and that unless such negligence was proven the verdict must be for the defendant. I must confine my consideration upon this appeal to the case as thus submitted. I think it quite clear that the act complained of could not be considered a detail of superintendence. Bateman for the time being took the place of a fellow-servant, and undertook to perform his duties, which were to start and to stop the engine in accord with certain signals given to him by signalmen. Thus in *McHugh*v. *Manhattan R. Co.*(179 N. Y. 384) the court say: “Doubtless had the train been started by the engineer without a signal, or had the conductor or one of the guards improperly given a signal for the train to move, it would have been the act of a fellow-servant and the defendant would not have been liable therefor.” (See, *329too, *Moore*v. *Curran,*198 Mass. 60; *Cashman*v. *Chase,*156 id. 342; *Kujava v. Irving,*122 App. Div. 375; *Smith*v. *Pioneer Mining &*Mfg. *Co.,*146 Ala. 234.) It seems to me that the undisputed evidence established that this act of Bateman was not one of superintendence, and hence there was no question for the jury upon this issue.

The appellant contends that the court erred in admitting in evidence the plaintiff’s notice under the Employers’ Liability Act, for the reason that the statute (Consol. Laws, chap. 31 [Laws of 1909, chap. 36], § 201, as amd. by Laws of 1910, chap. 352) prescribes that it must be addressed to the office or the principal place of business of such corporation; that it appears that this is a West Virginia corporation and that the notice was sent by registered mail to an office admittedly maintained by the defendant at Cornwall-on-Hudson in this State. The notice is to the defendant alone, and, therefore, it is not to be considered as are notices whose purpose is more or less general. I think that the plaintiff complied substantially with the law. I think that the office or principal place of business of such a corporation as contemplated by this statute is that maintained by it in this State. (Gen. Corp. Law [Consol. Laws, chap. 23; Laws of 1909, chap. 28], §§ 15, 16.) The defendant does not contend that the office or place of business of service was not within, that description, so far as this State is concerned; nor does it contend that the notice as given it did not fulfill its purpose so far as the defendant was concerned. Indeed it admitted the service thereof in its answer. Thus the essential fact is established that the notice actually was given and actually was received. It would seem that a construction of the statute so as to require the service of such notice upon the principal office of a foreign corporation in its own State would not only serve to hinder the servant, but would not afford such facilities to the corporation for inquiry and investigation as if the notice had been given directly to its office or principal place of business within this State. And further, if the corporation is allowed to do business in the State, there is no reason why it should not be held subject to notice given to it in the State of a matter directly connected with that business.

It is contended that the court erred in not dismissing the *330plaintiff, inasmuch as the notice specified as the sole cause of the accident, “my injuries were caused by reason of the negligence and carelessness of your said foreman or superintendent in ordering, directing and permitting the aforesaid form to be moved without first giving me proper, sufficient and suitable notice thereof,” whereas the proof showed that Bateman, the superintendent, *himself*started the engine. I think the point is hypercritical. The variance could not be misleading. And it is immaterial, so far as the notice was concerned, whether Bateman ordered, directed and permitted another, or in effect ordered, directed and permitted *himself*to start the engine.

I should add that this opinion is confined to the theory of the submission of this case, and it is not intended to indicate rescission or modification of the views of this court as expressed in *Cashmore*v. *Peerless Motor Car Co.*(154 App. Div. 814) and *Svendsen*v. *McWilliams, Incorporated*(157 id. 474), or any different view than that taken by this court in its Third Department in *Famborille*v. *Atlantic, Gulf & Pacific Co.*(155 id. 833).

The judgment and order are reversed, and a new trial is granted, costs to abide the event.

Thomas, Carr, Stapleton and Putnam, JJ., concurred.

Judgment and order reversed, and new trial granted, costs to abide the event.