Augustus Rockstrow, Respondent, v. Astoria Marble Company, Appellant

Augustus Rockstrow, Respondent, v. Astoria Marble Company, Appellant. Second Department, July 9, 1907. Master and servant — injury by window glass. A machinist whose duties require him to close the shop windows at night cannot recover for injuries received by the fall of- glass from a- pane which was previously cracked in the absence of evidence that the master knew or received notice that the pane was cracked. ' -' Appeal by the defendant,, the Astoria Marble Company, from a judgment .of the Municipal Court of the city of New York, borough of Queens, in favor of the plaintiff, rendered on the 7th day of. November, 1906., . ■ ■ ■ . Elliott L. Perkins, for the appellant, John Hetherington, for the respondent. [MAJORITY — Gaynor, J.:] Gaynor, J.: The plaintiff was employed as a ■ machinist in. the defendant’s shop.. He also closed .up the shop every night, that being his duty. He' testified that as he was closing, a window in the performance of this duty, part of a pane of glass fell out of it and cut his arm, •. Another witness testified- that he had noticed for a few weeks that the pane was cracked across; On this the justice gave, judgment for the plaintiff for. damages. There seems to be no' end to such actions. As it was the plaintiff’s duty to close the windows daily, it was for him to report to his employer, or to some one in authority,, if they were in a condition dangerous to him. Tiiis he never did; and there is ho evidence that any one did,- or that the employer or. any one in authority knew of the broken pane; if-that makes a difference. The judgment should be reversed; Hirschberg, P. J., Woodward, Jenks and Miller, JJ., concurred. Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.