James Beadle, Respondent, v. Holbrook, Cabot & Rollins Corporation, Appellant

James Beadle, Respondent, v. Holbrook, Cabot & Rollins Corporation, Appellant. Second Department, November 20, 1914 Master and servant — negligence — sufficiency of notice under Labor Law — time of service of notice. Where, in an action by a servant against his master to recover for personal injuries, there is nothing in the notice served under the Labor Law, nor in the complaint or bill of particulars specifically apprising the defendant of the particular issue which was submitted to the jury, a judgment in favor of the plaintiff should be reversed. Although the statute contemplates the service of the notice within a time so proximate to the accident as to enable the master to investigate and use the knowledge acquired for the purpose of defense or settlement, it does not provide for such interval between the service of the notice and the summons as to enable a master to make inquiry and act thereon. Appeal by the defendant, Holbrook, Cabot & Rollins Corporation, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 29th day of May, 1914, upon the verdict of a jury for $850, and also from an order entered in said clerk’s office on the 15th day of June, 1914, denying defendant’s motion for a new trial. The action was brought by a servant against his master to recover damages for personal injuries. The notice, served under article 14 of the Labor Law, alleged that the defendant, its superintendents and foremen were negligent in directing plaintiff to work at the point where he was injured: “First. When they knew, or should have known, of the aforesaid dangerous condition. “ Second. In failing to warn me of my danger or in protecting me therefrom. “ Third. In putting me to work at the place where I was injured, without any sufficient or proper instructions. “Fourth. In directing me to work at the place where I was injured, when it was known, or should have been known, that it was unsafe and that the runway or scaffolding above me and the barrows used thereon for the conveying of rock and other debris above me, were in an unsafe, defective and dangerous condition, and in failing to remedy such condition. “ Fifth. In failing to interpose between my person and the runway, planking or scaffolding above me, upon which rock and other debris was being conveyed in barrows, a guard, barrier or protection, when it was known, or should have been known, that the location thereof made my situation in the place where I was working unsafe, improper and dangerous.” Benjamin Patterson, for the appellant. Frank L. Tyson [ J. Arthur Hilton with him on the brief], for the respondent. [MAJORITY — Thomas, J.:] Thomas, J.: If the notice is sufficient, the jury was justified by the evidence in finding that the Polish servant was coerced by the peremptory order of the foreman to dump the barrow on the already loaded car, and that the order was so negligent as to inculpate the master. The notice was served before the action was begun. The statute contemplates the service of the notice within a time so proximate to the accident as to enable the master to investigate, and use the knowledge acquired for the purpose of defense or settlement, but it does not provide for such interval intermediate the service of the notice and summons as would enable the master to make and to act upon such inquiry. The court submitted to the jury the command of the foreman to dump the barrow and whether he was negligent in so doing without warning plaintiff of the order of seeing to it that it was safe to follow the order. I find nothing in the notice that suggests such cause of the injury. The negligence of the superintendent and foreman is particularized, and while, the notice refers to failure to warn, the reference is not to any fact or circumstance that covers the foreman’s order, but to general failure to protect against falling material. In the notice, complaint or bill of particulars there is nothing specifically apprising the defendant of the issue submitted to the jury, and the notice does not include it The judgment and order should be reversed and a new trial granted, costs to abide the event. Jenks, P. J., Carr, Stapleton and Putnam, JJ., concurred. Judgment and order reversed and new trial granted, costs to abide the event.