#### HACKETT v. MASTERSON.

(Supreme Court, Appellate Division, Second Department.

November 20, 1903.)

1. Master and Servant—Negligence—Complaint—Allegations — Admissions.

Where, in an action by a servant against the master for injuries, the complaint alleged that defendant “owned or had control of the rolling stock, equipments, and appliances used in the work,” the allegation being preliminary and general, its admission by the answer cannot be construed as an admission by defendant that he owned and controlled an implement which he had never furnished for the work, nor permitted to be used therein.

2. Same—Liability op Master—Appliances—Use op Appliance not Furnished.

Where the master furnishes adequate appliances for the work, he is not liable for injuries to a servant resulting from a part of the apparatus *752furnished by him being used in conjunction with an implement not furnished by him, but substituted without Ms notice, even though his foreman was instrumental in the use of such implement.

3. Same—Trial—Judgment—Determination of Merits.

"Where a judgment is set aside because plaintiff failed to make out a case, a judgment dismissing the complaint should not record that the dismissal was “on the merits.”

Appeal from Trial Term, Nassau County.

Action by Peter B. Hackett against William H. Masterson. From an order setting aside the verdict of a jury, and from a judgment in favor of defendant, plaintiff appeals. Affirmed.

Argued before GOODRICH, P. J., and BARTLETT, JENKS, WOODWARD, and HOOKER, JJ.

George Wallace, for appellant.

H. Snowden Marshall (George H. Abbott, on brief), for respondent.

JENKS, J.

This is an action for negligence by servant against master. The servant was at work laying a pipe line. A pipe was raised by a derrick, and a rope sling was attached by a hook to a railroad rail, which had been put through the pipe to be laid extending into the pipe then in place. After the pipe was raised, something gave way, and the plaintiff was struck and injured by the end of the rail over which he was standing in the inside of the pipe, then in position. The plaintiff complains that the hook was improper, and therefore slipped and gave way, and that such hoisting apparatus, with such hook, was an unsafe appliance for the work. The plaintiff testifies that the ordinary method was to use a derrick and a rope sling, and that, although he had worked at laying pipe for two or three months, this was the first time that a rail had been thus used. His witness Abrams, a fellow servant, testifies that he had never theretofore seen a pipe thus moved. His witness Malloy, the foreman, testified that he had never thus used this rail on this work before, and that, so far as he knew, none of the workmen had ever seen such use. The defendant’s witness Cooper, who was in charge of the derrick at the time of the accident, testified that he had operated the hoisting engine and derrick for four months before .the accident, and that he had never seen the rail used in that way. The plaintiff testified that the rail was one of the Long Island Railroad rails, but that he could not state whether it belonged to the railroad, or where it belonged. Cooper testified that he did not know where the rail was obtained, but that he had nothing to do with its placing. Plaintiff’s witness Monds testified that the work was doing alongside of the track of the Long Island Railroad; that he had seen numerous rails lying alongside of the track; that the rail in question was smaller than the Long Island Railroad rails; that, however, there are two sizes, and that the ones they are “throwing out” are smaller than the ones they are putting in. On the other hand, there was no evidence that the railroad-iron was an appliance owned, controlled, furnished, or authorized by the master. True, the witness Monds does say that it was “the same rail that was used for months there,” but he does not say that it was ever used as part of the *753hoisting apparatus. And his testimony may be reconciled with the other testimony by noting that the plaintiff testified that they generally “shove it home with bars or by hand.”

The learned counsel for the appellant argues that the plaintiff was not bound to bring the use of the rail home to the master, for the reason that he pleaded that the defendant “owned or had control of the rolling stock, equipments, and appliances used in said work,” and that the defendant admitted this by the answer. The allegation is preliminary and general, and cannot be construed to an admission that the defendant owned and controlled that which he had never furnished nor permitted to be used in place of a complete apparatus. So far as this record reads, then, it appears that for this occasion only the foreman and the servants employed in place of the complete and apparently adequate tackle theretofore in use an iron rail which was neither furnished nor authorized by the master. The hook complained of was furnished by the master for adjustment with a rope sling, and had theretofore been thus solely used. There is not the slightest evidence that, even in the misuse of the hook with the iron rail the hook was inadequate, or was bent or broken, or was not in its normal condition after the accident. If. there were at hand, and furnished by the master, complete and' adequate appliances for the work, he cannot be held liable because a part of the apparatus furnished by him was joined with a thing not furnished by him, but substituted without his notice or authority (even though the foreman of the job chose it or consented to its use), with the consequence that the part furnished by him in connection with the foreign appliance did not work safely. Flet v. Hunter Arms Co., 74 App. Div. 572, 77 N. Y. Supp. 752, citing Mahoney v.Vacuum Oil Co., 76 Hun, 579, 28 N. Y. Supp. 196; O’Connall v. Thompson-Starrett Co., 72 App. Div. 47, 52, 76 N. Y. Supp. 296; Hussey v. Coger, 112 N. Y. 614, 20 N. E. 556, 3 L. R. A. 559, 8 Am. St. Rep. 787. I think that Garretson, J., made a correct disposition of the case. He simply granted a nonsuit, and the judgment should not record that the dismissal was on the merits. Peggo *v.*Dinan, 72 App. Div. 434, 76 N. Y. Supp. 565.

The judgment should be amended, and, as amended, affirmed, and the order should be affirmed, with costs. All concur.