James Duffy, Respondent, v. Otis Elevator Company, Appellant

James Duffy, Respondent, v. Otis Elevator Company, Appellant. Appeal by the defendant from a judgment of the Supreme Court in favor of the plaintiff, entered in the clerk’s office of Westchester county on May 11,1908, and from an order denying a motion for a new trial. [MAJORITY] Judgment and orders affirmed, with costs. No opinion. Hirschberg, P. J., Gaynor, Rich and Miller, JJ., concurred; Burr, J., read for reversal. [DISSENT — Burr, J.] Burr, J. (dissenting): I dissent from the affirmance of this judgment. It is conceded that the original complaint was not sufficient to enable plaintiff to prove the cause of action upon which he subsequently recovered. The amendment stated an entirely new cause of action, based upon alleged statements of a person acting as superintendent of the defendant. At common law, and in the absence of the Employers’ Liability Act, the complaint as amended would not have justified a recovery against the defendant. The notice which was served under that act was insufficient to permit a recovery upon the ground stated in the amended complaint, and as this was the only ground upon which the plaintiff obtained a verdict, the judgment entered on that verdict should be reversed and a new trial granted.