#### Lorenzo Matrusciello, Appellant, v. Milliken Brothers, Incorporated, Respondent.

Second Department,

December 30, 1908.

Master and servant—Employers’ Liability Act — sufficiency of notice.

A notice states the time, place and cause of an injury -with sufficient accuracy to bring the case within the Employers' Liability Act when, although embodying needless general allegations of negligence, it states that the time was about ten-thirty p. m. on a specified date, that the place was where the defendant’s contracting operations were being carried on at Mariner’s Harbor, Staten Island, and that the cause was the plaintiffs being struck and run over by one of the defendant’s cars or trains.

*662Rich and Woodward, JJ., dissented, but concurred in result on the ground that the complaint should not have been dismissed because it stated a cause of action at common law.

Appeal by the plaintiff, Lorenzo Matrnsciello, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Richmond on the 29th day of May, 1908, upon the dismissal of the complaint by direction of the court upon the pleadings at the Richmond Trial Term, and also from an order entered in said clerk’s office on the 29tli day of June, 1908, denying the plaintiff’s motion for a new trial made upon the minutes.

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

*William L. Kiefer [Frank V. Johnson,*with him on the brief], for the respondent.

Miller, J.:

I think the notice served in this case stated the time, place and cause of the injury with sufficient accuracy.- It was as follows:

> “ To Milliken Brothers, Inc.,

> “ | 11 Broadway,

> “New York City:

> “Sirs.— Please take notice, that I, the undersigned, on April 22nd, 1907, at about 10 : 30 p. m. while in your employ working in connection with your contracting operation at Mariners Harbor, Staten Island, New York, was struck, injured and run over by one of your cars or trains & sustained serious, painful and permanent injuries to my body, especially to my leg, which was so injured as to necessitate amputation thereof, and a serious and permanent shock to my nervous system.

> “ That said injuries were caused without any negligence on my part in anywise contributing thereto, but solely by your negligence, in that as my master, you failed to furnish me with a reasonably safe place, appliances, ways, works, machinery and apparatus in and in connection with which to work, and failed to reasonably safeguard, inspect and keep safe the same, and knowingly employed and retained incompetent foremen and co-workmen to guide, direct and assist me in tlio performance of my work, and failed to formu*663late, promulgate and enforce proper rules and regulations for my safety and the safety of said co-employees, and in that your employees charged with and exercising superintendence over me, negligently and carelessly conducted themselves in connection with said acts of superintendence, as a result of which I was caused to be struck and injured by said train and cars, as aforesaid.

> “ Yours, etc.,

> “(Signed) LORENZO MATEÜSCIELLO.”

In each of the cases cited to sustain the respondent’s contention the notice contained but a general statement of different grounds of negligence and was in effect nothing more than a statement that the injury was caused by the employer’s negligence. The requirement of the statute (Laws of 1902, chap. 600) is that the notice shall contain a statement of the *cause of the injury,*and the purpose of it is that the employer may be informed of what happened so that he may intelligently investigate the case. *(Palmieri*v. *Pearson & Son, Inc.,*128 App. Div. 231, and cases cited.) Eliminating the general statements of negligence, which are mere useless verbiage and would be useless even in a complaint except possibly to embarrass the plaintiff, the notice states the time, place and cause of the injury as follows: Time, about ten-thirty p. *u.,*on April 22, 1907; the place, where the defendant’s contracting operations were being carried on at Mariners Harbor, Staten Island; the cause, the plaintiff’s being struck and run over by one of the defendant’s cars or trains. Here is a definite statement of all the statute requires. *(O’Donnell*v. *Parker Co.,*125 App. Div. 475; 109 N. Y. Supp. 875.) It follows that the judgment should be reversed for the error in dismissing the complaint on the opening for insufficiency of the notice.

Hooker and Gaynor, JJ., concurred; Rich, J., concurred in separate opinion, with whom Woodward, J., concurred.

Rich, J. (concurring):

This action is to recover damages for a personal injury. The complaint alleges facts sufficient to constitute a cause of action at common law, as well as a cause of action under the statute known as the Employers’ Liability Act, though not separately stated. This *664form of pleading is authorized, and a plaintiff may be permitted to recover when the evidence given upon the trial establishes a cause of action under either the common law or the Employers’ Liability Act. *(Kleps*v. *Bristol Mfg. Co.,*107 App. Div. 488; *Acardo*v. *N. Y. Contracting & Trucking Co.,*116 id. 793.) After counsel for the plaintiff had opened his case to the jury the court directed that proof of the form and service of the notice be first tendered, and the defendant thereupon produced the notice served upon it, which the plaintiff introduced in evidence. The record shows the following to have then occurred : *“*The Court: Have you any further evidence with respect to the giving of notice? Mr. O’Heill: The answer admits the service of the notice. The Court: How, with respect to the notice itself, its service being admitted, have you on that subject any further proof to offer? Mr. O’Heill.: I may, yes; later. The Court: I will ask you to produce it now. * * * Mr. O’Heill: If there is any insufficiency of the notice I expect to show as this case proceeds by each and every witness that the defendant was thoroughly acquainted with the cause and therefore was not deceived under section 3. That I cannot prove except as I go along. The Court: Outside of the evidence you have just referred to, have you no further evidence to offer on the subject of notice? Mr. O’Heill: Ho.”

The learned trial justice held the notice insufficient in failing to state the cause of the accident, and dismissed the complaint. The plaintiff excepted to this ruling and insisted upon the right of introducing evidence to establish his cause of action “ not only under the Employers’ Liability Act but also upon the common law, in the failure to formulate and promulgate and enforce a rule and regulation with reference to the starting of trains upon signal only, which I claim caused this accident,” to which the court replied: “ Plaintiff’s motion to proceed with the case and introduce evidence on the theory that he has brought a common-law action, basing the defendant’s liability upon the failure to formulate and enforce proper rules and regulations for plaintiff’s safety is denied. Complaint dismissed. Exception to Mr. O’Heill.” Plaintiff then moved to set aside the direction dismissing his complaint and for a new trial, which was denied and an exception taken.

The notice was insufficient in that it failed to state the cause of *665the injury, as the learned tidal justice correctly held. *(Miller*v. *Solvay Process Co.,*109 App. Div. 135; *Barry*v. *Derby Desk Co.,*12 id. 810; *Finnigan v. N. Y. Contracting Co.,*122 id. 712; *Bovi v. Hess,*123 id. 389; *Glynn*v. *N. Y. C. & H. R. R. R. Co.,*125 id. 186; *Kennedy*v. *N. Y. Telephone Co.,*Id. 846; *Palmieri*v. *Pearson & Son, Inc.,*128 id. 231.) The appellant’s argument that a substantial compliance with the statute is all that is necessary was considered and decided adversely to his contention in *Barry v. Derby Desk Co.*and *Bovi*v. *Hess (supra).*The plaintiff contends that the notice would have been amply sufficient if it had merely stated that the plaintiff was struck and injured by the defendant’s train and cars. Such statement is the result of the negligent cause which produced the injury and not the cause itself. The cause in the case at bar was correctly stated, by the learned counsel in the trial court, to have been the starting of the switch train which ran over the plaintiff without giving him a signal or warning. Had the notice stated that the cause of his injury,was the negligence of the defendant and its agent superintending the work in starting its switch train without signal or warning, as a result of which it ran over and injured plaintiff, it would have been sufficient within the case of *O'Donnell*v. *Parker Co.*(125 App. Div. 475 ; 109 N. Y. Supp. 875) which is cited to sustain the proposition, but there is nothing in the notice served advising the defendant of the manner in which the accident happened or in what manner its agent, charged with the duty of superintendence, had been negligent or failed in the duties he was charged to perform; there is nothing in the notice apprising the defendant that the accident was caused by the starting of its train without signal or warning, which was required to enable defendant to make an intelligent investigation to determine whether any act of its superintendent had rendered it liable and to preserve the evidence necessary to a proper defense, and in all these respects it is insufficient within tire rules declared in the cases cited. The plaintiff further contends that the trial court erred in refusing to permit him to proceed with the trial, and to produce evidence showing that there was no intention to mislead, and that the defendant was not misled in fact by the notice given. The defect in the notice could not be obviated by the evidence suggested. "Where, as in this case, there is an entire omission to state in the notice the cause *666of the injury, the defect is fatal to a recovery and cannot be obviated. *(Finnigan*v. *N. Y. Contracting Co., supra; Glynn*v. *N. Y. C. & H. R. R. R. Co., supra; Palmieri*v. *Pearson & Son, Inc., supra.)*It is only where the person injured has stated in his notice the cause of his injury inaccurately that proof upon the trial that there was no intention to mislead and that the person entitled to notice was not in fact misled, obviates the insufficiency of the notice, and the rule invoked has no application to a notice which wholly omits to state the facts constituting the cause of the injury. Had the action been based wholly upon the statute the judgment and order appealed from would have to be affirmed, but as a cause of action good at common law is alleged, the plaintiff was entitled to make liis proof in support thereof, and the dismissal of his complaint was error.

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

Woodward, J., concurred.

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