#### Tony Galino, Respondent, *v.*Fleischmann Realty and Construction Company, Appellant.

First Department,

March 5, 1909.

Master and servant-—Employers’ Liability Act—- insufficient notice — erroneous charge — modification not curing error.

The purpose of a notice served under the Employers’ Liability Act is to acquaint the employer with the particular negligent act for which it is proposed to hold him .liable and thus enable him to make the necessary inquiries so that he can settle the claim without action or, if action be brought, properly -present his defense.

A plaintiff suing his master to recover for injuries received by the negligent operation of an elevator does not bring his case within the Employers’ Liability Act by a notice which states that the defendant was negligent in that it failed to furnish a reasonably safe place and appliances in and with which to work and to safeguard and inspect the same, and knowingly employed incom- . petént foremen and workmen and failed to formulate and enforce proper rules, as the result of which the plaintiff was permitted to fall, etc. This, because there is no statement of the particular act of negligence of which the plaintiff complains.

In such action it is error to charge that if the foreman ordered the plaintiff to descend by the elevator and gave a signal to descend rapidly, his act was negligent and binding upon the defendant so that plaintiff is entitled to *606recover, for the question as to whether the order of the foreman was negligent is a question, not of law, but of fact for the jury.

Such error is not cured where the plaintiff’s counsel, in answer to the defendant’s objection, stated that, while the charge was “correct in substance,” he asked the court to change the form so that the jury might find negligence, instead of being instructed that the act would be negligence, and the court replied: “ I acquiesce in the modification.” This, because the court assented to the statement that the charge was correct in substance,

Where a jury has been erroneously instructed as to the law applicable to the facts, the error can be cured only by the trial justice withdrawing the charge as made in language so plain and explicit as to preclude an inference that the jury may have been influenced by it.

Appeal by the defendant, Fleisehmann Realty and Construction Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of .Few" 'York on the 25th day of June, 1908, upon the verdict of a jury for $1,500, and also from an order entered in said clerk’s office on the 29th day of June, 1908, denying the defendant’s motion for a, new trial made upon the minutes.

*John C.*Robinson, for the appellant.

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

McLaughlin, J.:

The plaintiff, an employee of the defendant, brought this action to recover damages under the common law and the Employers’ Liability Act (Laws of 1902, chap. 600) for peisonal injuries which he claimed were caused by reason of the latter’s negligence, which was put in issue by the answer. H.e had verdict, and from tire judgment entered thereon and an order denying a motion for a new trial defendant appeals.

The particular act of negligence complained of was a signal given by the defendant’s superintendent or a person performing acts of superintendence by which an elevator on which the plaintiff, was riding was caused to descend so rapidly that the fingers of one of his hands were injured by a wheelbarrow on the elevator coming in contact with them.

The testimony offered on the part of the plaintiff tended to establish his claim, while that offered on the part of the defendant was to the effect that the plaintiff had . frequently been warned not to *607ride on the elevator; that he gave the signal himself, 'and was responsible for his own injury. Which contention was correct presented a question of fact, which was for the determination of the' jury, and its finding on this branch of the case would he affirmed were it not for the fact that errors were committed at the trial which call for a reversal of the judgment. The plaintiff, in order to establish his case.under the Employers’ Liability Act, was permitted to introduce in evidence, against the defendant’s objection and exception, a notice served upon the defendant prior to the commencement of the action. The objection to the notice should have been sustained. It is not a notice of the kind or character required by the act. The purpose of such a notice is to acquaint the employer with the particular negligent act for which it is proposed to hold him liable, and thus enable him to make the necessary inquiries, so that he can settle the claim without action, or, if action be brought, properly present his defense. *[Barry v. Derby Desk Co.,*121 App. Div. 810.) It is defective in that it does not state the particular act of-negligence complained of. It states simply that the injuries were caused by defendant’s negligence, in that it failed *“*to furnish me with a reasonably safe place and appliances in and with which to do the work, and failed to reasonably safeguard, inspect and keep safe the place and appliances with which I was directed to work, and failed to furnish me with proper and reasonably safe ways, works and machinery, and in that you knowingly employed and retained incompetent foremen and co-workmen to guide, direct and assist me in the performance of my work, and failed to formulate, promulgate and enforce proper rules and regulations for my safety and the safety of said co-employees, as a result of all of which I was caused and permitted to fall and material fell upon me, and I sustained the injuries as aforesaid.” From this notice the defendant could gain no information as to the particular act of negligence of which the plaintiff complained.' It is substantially the same as the notice pronounced defective by this court in *Finnigan v. New York Contracting Co.*(122 App. Div. 712 ; 126 id. 947; affd., 194 N. Y. 244).

The court also erred in charging the jury, to which an exception was taken, that “ If the foreman ordered the plaintiff to descend by the elevator and gave the signal to descend rapidly, his act consti*608tuted negligence which would bind the defendant, and plaintiff would be entitled to recover.” Whether the order of the foreman, if given, were an act of negligence was a question of fact to be determined by the jury and not a question of law to be determined by the court. Mor was the erroneous instruction thus given cured by what subsequently occurred. In excepting to the instruction, counsel for the defendant said: “ I except to that part of your Honor’s charge in which you say in effect that if the jury find that the foreman gave the wrong signal, that fact would fasten negligence on the defendant,” and plaintiff’s counsel responded: “ While that is correct in substance, I ask your Honor to change the form of that so as to say ‘ that the jury would be at liberty to find negligence from that,’ instead of instructing them that that would be negligence.” The court said: “ 1 acquiesce in the modification,” and defendant’s counsel excepted to the charge as modified. By the modification the learned trial justice emphasized the erroneous instruction previously given, by saying it was “ Correct in substance.” Where a jury has been erroneously instructed as to the law applicable to the facts in the case, the error can only be cured by the trial justice withdrawing the charge as made in language so plain and explicit as to preclude an inference that the jury may have been influenced by it. *(Phillips*v. *New York Central & H. R. R. R. Co., 127*N. Y. 657; *Willard*v. *Press*Pub. *Co.,*52 App. Div. 448.) This was not done. The jury were not told, nor was even an intimation made, that they were not to be bound by the previous instruction:

But irrespective of the two errors alluded to, which require: a reversal of the judgment, the record shows such statements on the part of the plaintiff’s counsel as call for condemnation, and might of themselves be sufficient ground for'reversing the judgment.

Hpon the grounds named, therefore, I think the judgment and order appealed from should be reversed and a new trial ordered, with costs to appellant to abide event.

Ingraham, Clarke, Houghton and Scott, JJ., concurred.

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