Sarah A. Carlin, as Administratrix, etc., of Thomas F. Carlin, Deceased, Appellant, v. New York, New Haven and Hartford Railroad Company and New York Dock Company, Respondents

Sarah A. Carlin, as Administratrix, etc., of Thomas F. Carlin, Deceased, Appellant, v. New York, New Haven and Hartford Railroad Company and New York Dock Company, Respondents. Second Department, March 31, 1910. Ships and shipping — injury by collision—captain is fellow-servant with other employees — Employers’ Liability Act — insufficient notice. The captain of a float and the captain of a tug towing the same, both in the employ of the same master, are fellow-servants so that there can be no recovery for the death of one caused by the negligence of the other. Qumre, as to whether the employer of the-captain of a vessel can be charged with his negligence upon the ground that he is a superintendent within the Employers’ Liability Act. A notice purporting to be drawn under the Employers’ Liability Act stating that the plaintiff’s intestate was killed on a certain date “while in your employ on a float in the vicinity of Communipaw Ferry, North River, duo to a collision which occurred in said vicinity of Communipaw Ferry ” is insufficient to bring the case within the statute even tnoughthe defendant had other means of acquiring information. Reargtoment . of appeal by the plaintiff, Sarah A. Carlin, as administratrix, etc., from separate judgments in favor of the respect tive defendants, entered in the -office of the clerk of the. county of Kings, one on the 1st day of May, 1909, and the other on the 28th day of June, 1909, upon the dismissal of the complaint by direction of the court after a trial at the Kings County Trial Term, certain questions of fact having been submitted to the jury, arid also from an order entered in said clerk’s office on the 28th day of April, 1909, denying the plaintiff’s motions to set aside the direction dismissing the complaint and for a new trial. . (See 135 App. Div. 876.) Rufus O. Gatlin, for the appellant. James J. Mahoney, for the respondent New York Dock Company. [MAJORITY — Carr, J.:] Carr, J.: The plaintiff’s intestate, Thomas F. Carlin, was in the service of the defendant, the New York Dock Company, as captain of a float on which said defendant transported railroad cars about New York harbor. While the float was in tow of one of the dock company’s tugs on its way from Jersey City to Brooklyn a collision occurred between that tow and another tow in charge of the New York, New Haven and.Hartford Eailroad Company. As a result of this collision Thomas F. Carlin lost his life. The plaintiff is his widow and administratrix. She has brought this action against her husband’s employer and the railroad company, charging that the. collision was due to the negligence of both of' them. On the trial of the action she sought to charge the New York Dock Company with negligence on the part of the captain of its tug which was towing the float. This negligence, according to the plaintiff’s claim, arose .in the act of the tug captain in continuing his course without ■ stopping soon enough when he saw the other tow approaching. The learned trial court dismissed the complaint against the. dock company on the ground that the decedent, the captain of the float and the tug captain were fellow-sOrvantSj and that hence the plaintiff could not recover against the common.master. As it appeared on the trial, the ¡captain of the tug was, at the time of the accident, in the wheelliouse of the tüg, engaged himself in the actual navigation of the tow. The question arises whether, under such circumstances, he. was the alter ego of the master or a fellow-servant with the other servants of the common master engaged in the work of the tow. There are several authorities to aid in the answer to this question. Outside this State, the question whether the master of a-ship is a .fellow-servant of the members of the crew has been the subject of not a. few decisions. In the case of The Gity of Alexandria (17 Fed. Eep. 390) it was held that all the officers and the members of the crew of a vessel on a voyage, whatever be their relative ranks, are fellow-servants in one enterprise, and no liability can be imposed upon the owner for- the negligence of one as against the other. The same rule was declared in Benson v. Goodwin (147 Mass. 237). In Mathews v. Gase (61 Wis. 491) the owner of a ship was held not to be liable for the negligent act of the ship’s captain in steering the ship so unsliillfully in the trough of the sea. that it was boarded by large quantities of water, which caused a,n injury to one of the crew, and the ground of the decision was that the captain and the crew were fellow-servants. In this 'State the authorities are to the samé effect. In one phase or other, the question has been twice before this court in a not very great length of time. In Larssen v. Delaware, L. & W. R. R. Co. (59 App. Div. 202) it was held that the owner of a sea-going tug was not liable to a deckhand for personal injuries caused by negligence of the captain in the management of the tug, because both captain and deckhand were fellow-servants; and the case of Hedley v. Pinkney & Sons S. S. Co. (L. R. [1892] 1 Q, B. 58), where the same doctrine was declared, was cited as one of many authorities to that effect. In Belt v. Du Hois’ Sons Co. (97 App. Div. 392) a collision had taken place between a tug and a piledriver, both owned and operated by the defendant, and one of its' servants engaged on the piledriver was injured through the alleged negligence of the tug captain. It was held that both the tug captain and the man on the piledriver were fellow-servants and that no liability fell upon- the common employer. In Gabrielson v. Waydell (135 N. Y. 1) there is an exhaustive consideration of the question of the fellow-servantship of the captain with the crew of a vessel while on a voyage, and while the court was divided as to whether the owner was liable to a member of the crew for cruel conduct on the part of the captain as a fellow-servant, there was no division of opinion that, in the.ordinary work of navigation, captain and crew were all fellow-servants. To the same effect is the authority of Geoghegan v. Atlas Steamship Co. (146 N. Y. 369). The plaintiff seeks to avoid this common-law rule by asserting a right to maintain her action under the Employers’ Liability Act (Laws of 1902, chap. 600). It is her claim that the captain of the tug was a “ person in the service of the employer entrusted with and exercising superintendence whose sole or principal duty is that of superintendence,” within the provisions of that statute, and that hence there is a liability on the part of the employer, the dock company, for the captain’s negligence in the navigation of the tow. Unfortunately for her, the notice given by her, under the requirements of section 2 of that statute, does not bring. her case within its provisions so as to present the question of the captain’s “ super-. intendence ” for our decision. The notice given was as follows: “ To the New York Dock Company : “ The undersigned * * * hereby notifies you, pursuant to Chapter 600 of the Laws of 1902 of the State of New York, that said Thomas' F. Carlin was killed on the 24th day of March, 1903, while in your employ on a float in the vicinity of Comm unipaw Ferry, ¡North River, due to a collision which occurred in said vicinity of Communipaw Ferry. “ Dated Brooklyn, ¡NT. Y., July 15, 1903. “ SARAH A. CARLIH.” That this notice is wholly insufficient as a compliance with the provisions of the statute seems beyond discussion, notwithstanding the probability that the defendant dock company had other means of acquiring all necessary information. The giving of the notice required by the statute is a condition precedent to bringing an action within its terms. (Finnigan v. New, York Contracting Co., 194 N. Y. 244.) The judgment dismissing the Complaint as against the defendant The Hew York Dock Company, and the order denying a new trial should be affirmed on reargument, with costs. Jenks, Burr, Thomas and Rich, JJ., concurred. Judgment dismissing the complaint as against the defendant The Héw York Dock Company,, and order denying motion for a new trial affirmed on reargument, with costs.