#### HOLM v. EMPIRE HARDWARE CO.

(Supreme Court, Appellate Division, Eirst Department.

March 24, 1905.)

1. Employers’ Liability Law—Statutory Notice—Time for Giving.

Under the direct provisions of the employers’ liability law (Laws 1902, p. 1748, c. 600, § 2), where an employé died of his injuries without having given any notice to the employer of the time, place, and cause of the injury, a notice given by his administrator more than 60 days after his appointment is insufficient.

2. Death of Employé—Sufficiency of Complaint.

If the complaint in an action for the death of an employé states a cause of action for wrongful death under Code Civ. Proc. § 1902, it is immaterial whether or not the notice to the employer of the time, place, and cause of the injury, as required by the employers’ liability law (Laws 1902, p. 1748, c. 600, § 2), was given, though such notice is alleged.

3. Same—Negligence .of Employer.

Plaintiff’s decedent received injuries resulting in death while employed by defendant in moving machinery from a building, the injury being caused by the breaking of a boom extending from the wall of the building, it having become decayed inside the wall. *Reid,*that plaintiff could not recover without showing negligence by defendant either in directing the use of the boom by the employés in its decayed condition or in failure to inspect the boom.

4. Dismissal of Complaint—Grounds of Dismissal—Review.

Where a motion to dismiss a complaint is based on several grounds, and the record does not show on what ground it was granted, the order of dismissal will be sustained if it was proper on any of the grounds.

O’Brien and Hatch, JJ., dissenting.

Action for the death of an employé by Aurora M. Holm, administratrix of the estate of Theodore M. Holm, deceased, against the Empire Hardware Company. The complaint was dismissed, and plaintiff moved for a new trial on exceptions, which was ordered to be heard in the first instance at the Appellate Division. Motion denied.

Argued before VAN BRUNT, P. J., and HATCH, McLAUGHLIN, O’BRIEN, and INGRAHAM, JJ.

Frederick S. Martyn, for the motion.

H. Aplington, opposed.

INGRAHAM, J.

The plaintiff’s intestate was, on the 14th day of August, 1903, in the employ of the defendant, and while engaged in lowering a piece of machinery from the defendant’s building to a truck in the street, a boom to which the tackle for lowering the machinery was affixed, broke, and struck the plaintiff’s intestate, caus*915ing his death. The complaint alleges that the defendant unlawfully neglected and failed to provide the plaintiff’s intestate with a safe place to work, and with safe tools and appliances, and to keep the same in a reasonably safe condition and repair, in that the said boom was rotten, and not strong enough to bear the weights put upon it, and that these facts were known to the defendant and unknown to the plaintiff’s intestate; that in consequence of the defendant’s neglect the said boom broke while a heavy piece of machinery or furniture was being lowered; and that the said piece of machinery or furniture fell upon the plaintiff’s intestate, inflicting upon him injuries causing his death. It was further alleged that prior to the commencement of the action, and within 60 days after the appointment of the plaintiff herein as administratrix, the notice required by law to be served upon the defendant was duly served.

The answer admitted the employment, and the death of the plaintiff’s intestate, but denied the other allegations- of the complaint, and alleged that the notice required by section 2 of chapter 600, p. 1749, of the Laws of 1902, was never given to the defendant by the plaintiff, or by any other person or persons.

Upon the trial a letter from the plaintiff to the defendant was introduced in evidence, but which was dated and served on the defendant more than 60 days after the plaintiff’s appointment as administratrix ; and this notice was therefore ineffectual to give to the plaintiff a cause of action under the statute above referred to. Randall v. Holbrook Contracting Co., 95 App. Div. 336, 88 N. Y. Supp. 681. The plaintiff claimed upon the trial, and now claims, that the evidence was sufficient to- sustain a cause of action for the defendant’s negligence which caused the death of the plaintiff’s intestate irrespective of this statute. The defendant therefore is liable, if at all, under section 1902 of the Code of Civil Procedure. The complaint having alleged a cause of action under this section of the Code, it is entirely immaterial whether or not the notice required by the employers’ liability act was given; and the allegation of the service of such a notice was surplusage, and could not affect a cause of action properly pleaded irrespective of that act. If the facts alleged in the complaint give the plaintiff a cause of action under either section 1902 of the Code or under the employers’ liability act (Laws 1902, p. 1748, c. 600, § 2), the plaintiff was entitled to present her proof, and if the proof sustained the cause of action she was entitled to have the question submitted to the jury.

At the close of the plaintiff’s case the defendant moved to dismiss the complaint upon the ground that there was no evidence showing negligence on the part of the defendant in relation to the accident in question, and whether or not the complaint should have been dismissed upon that ground is the substantial question presented upon this appeal. It appears that the defendant had, prior to the time of the accident, occupied the premises No. 540 West Fourteenth street, in the city of New York, as a factory; that on the 14th day of August, 1903, it was removing some machinery from this building to a new factory; that the plaintiff’s intestate was a foreman of the carpenters’ department of the defendant’s business, which was located on the *916third floor of the building, but on the day in question the plaintiff’s intestate, with the other eniployés, were engaged in moving this machinery; and that upon the top of the building occupied by the defendant there was a boom, constructed of white oak, which came through the front wall of the building and extended over the street. There was no evidence that the defendant was the owner of the building, or that they had inserted this boom in the building, or had anything to do with it, except that it was a part of the building oc- • cupied by the defendant, and had been used for the purpose of raising and lowering material or furniture to and from the various stories of the building. On the morning in question one of the defendant’s employés, at whose request does not appear, went up to the top of the building, and affixed to this boom a tackle. Subsequently the plaintiff’s intestate, with other employés of the defendant, connected this tackle to a heavy piece of machinery weighing about 1,000 pounds, and commenced to lower it to the street. It got down to within six inches of a truck waiting to receive it, when the boom broke and fell, striking the plaintiff’s intestate, who was at the window on the second story of the building, and caused the injuries which resulted in his death. Upon a subseque'nt examination of the boom it was discovered that it had become rotten inside of the wall, where it was covered up, and it was in consequence of this rotten condition that it broke; but several of the employés of the defendant were examined by the plaintiff, and all testified that there was no appearance of rot anywhere upon the boom, and that it apparently was in the same condition that it had been in since it had been used by the defendant’s employés. This boom appears to have been sound, except at this particular point where it broke, which was covered by the wall of the building. There was an expert called by the plaintiff, who testified that there were two methods of testing timber, one called the “hammer test,” and the other a test by boring an auger hole in the timber to ascertain its condition. It does not clearly appear that the hammer test was applicable in such a case. The witness, however, was of the opinion that the condition of the boom where covered by the wall could have been ascertained by boring a diagonal hole into the boom and examining the shavings. But there is no evidence that the defendant had not made the tests described by the witness; nor did it appear that the defendant had constructed the boom, or was responsible for its condition, or that the defendant ever authorized or directed its employés to use this boom for the purpose of lowering this heavy machinery, or had any "knowledge that it was to be so used. The plaintiff’s intestate, who was one of the defendant’s foremen, with other of defendant’s employés, assumed to use the boom for this purpose, but, so far as appears, without instruction from any of the defendant’s responsible managers.

It is stated in the appellant’s brief that .the trial court dismissed the complaint because the notice alleged in paragraph 8 of the complaint was not served within 60 days after the appointment of the plaintiff as administratrix, although this does not appear from the record. The motion to dismiss was made upon several grounds; one being that there was no evidence showing negligence on the *917part of the defendant, and this motion was granted, upon what ground is not stated; but as the motion was made upon the ground that there was no negligence of the defendant proved, and that motion was granted, if the evidence would not sustain a finding of negligence the complaint was properly dismissed.

The appellant, in her brief, states that the facts in this case are so alike in principle to the case of Meehan v. Atlas Safe Moving Co., 94 App. Div. 306, 87 N. Y. Supp. 1031, that it was not necessary to argue the point that there was no evidence to go to the jury as to the defendant’s negligence, except to refer to this case. _ But as I read that case it is not at all in point. In that case a jack which was furnished by the defendant to be used by its employés in removing safes broke, and inflicted injuries which caused the death of the plaintiff’s intestate. It appeared without dispute that the jack was permeated with dry rot, which rendered it insufficient in strength to sustain the weight of the safe which was then being raised to the building, that the defendant made no tests to ascertain the condition of these jacks, and that the negligence consisted in failing to provide for such reasonable inspection as might have disclosed the infirmity. In this case there was no evidence to show that the defendant had not inspected this particular boom, or that the defendant had anything to do with its erection, or authorized its use by its employés to lower the machinery in question. A witness was examined and testified that in his opinion it would have taken at least 10 years after deterioration commenced for the boom to rot through; but I do not think that an inference would have been drawn from this opinion that no inspection had been made. The defendant could only be held liable upon proof of its negligence, and, in the absence of evidence that the defendant had in any way authorized the boom to be used as it was used by its employés when it broke, and that the defendant had not made the necessary tests as to its condition, a finding that the defendant was negligent would have been without evidence to support it.

I think the complaint was properly dismissed, and that the exceptions should be overruled, and judgment directed dismissing-the complaint, with costs. All concur, except O’BRIEN and HATCH, JJ., who dissent.