Peter Mandy, an Infant, by Tony Sennett, His Guardian ad Litem, Respondent, v. George Schleicher Company, Appellant

Peter Mandy, an Infant, by Tony Sennett, His Guardian ad Litem, Respondent, v. George Schleicher Company, Appellant. Second Department, December 30, 1910. Master and servant.— negligence — complaint — trial — amendment introducing new cause of action. It is error to permit a complaint to be amended at trial over defendant’s objection so as to introduce a new cause of action. Where in an action by a servant against his master to recover for personal injuries alleged to have been caused by the latter’s negligence, the only negligence alleged is that the guard which protected plaintiff from the knives of the machine on which he was working became detached in consequence of defendant’s negligence and plaintiff’s hand was drawn into the machine and injured, it is error to allow the complaint to be amended on the trial against objection, so as to allege a violation of the Labor Law in that the defendant permitted plaintiff, although under the age of sixteen, to operate a dangerous machine. Hirschberg, P. J., and Woodward, J., dissented. Appeal by the defendant, the George Schleicher Company, from , a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 28tli day of February, 1910, upon the verdict of a jury for $4,000, and also from an order entered in said clerk’s office on the 24th day of February, 1910, denying the defendant’s motion for a new trial made upon the minutes. Norman W. Kerngood, for the appellant. Edgar L. Ryder, for the respondent. [MAJORITY — Thomas, J.:] Thomas, J.: This action was brought by a person ■ under age to recover for injury • to his hand while he, as its servant, was operating the defendant’s machine. The complaint states that “ the guard which protects the operator and guards the knives of the machine, in- consequence of defendant’s negligence, became detached and plaintiff’s hand was drawn into the machine.” Upon the trial it was claimed on the part of the plaintiff that the guard, on account of the vibration of the machine while in operation, moved away from the knives, whereby plaintiff’s hand was allowed to come in contact with them, and that such motion was permitted by tile absence or defect of the set screw, which, as claimed, was needed to keep the guard in its place. This question was litigated upon the trial, but, in view of error in admitting evidence and presenting to the jury a quite distinct issue, need not be discussed. As the trial proceeded, the plaintiff gave evidence tending to prove that plaintiff had not been properly instructed ; that he was under the age of sixteen, and that by reason of the Labor Law (§ 81 as in force.at that time), he should " riot have been permitted “to operate or assist in operating dan-, gerous machines of any kind.” The defendant did not object to the admission of evidence relative to improper instruction, but did object to testimony relative to the violation of the statute. The court, upon the trial, seems to have permitted an amendment to the complaint by alleging a violation of the statute, and thereupon allowed evidence in that regard. The defendant excepted to the allowance of the amendment, and objected to the evidence, but did not except thereto. But when the plaintiff rested, the' defendant moved to strike out “ the evidence given as to the amendment,” and excepted to the denial. The court instructed the jury that the principal charge made by the plaintiff “ is that the defendant employed this plaintiff to work for [it] when he was under the age that the law permits a youth to work in a factory. The law in effect says that a boy under fourteen shall not work about a factory anywhere. It says that a boy.between fourteen and sixteen may be permitted to work in and about a factory — nothing said about machinery, if certain things are done by.the officers of the Board of Health of the village, town or city in which the boy lives. There must be satisfactory proof of his age, as to his schooling and other conditions with which I will not trouble you. If that is done, then a boy between fourteen and sixteen may work in a factory. Then there is another provision of law which says that a person under sixteen years of age shall not be permitted to work in and about dangerous machinery.” The court then more specifically charged the jury respecting the statutory regulation and prohibition. The court "should not have permitted an amendment of the complaint introducing an entirely new cause of action or issue. The defendant was notified in the complaint of one specific negligent act or omission, and that related to the guard. The new issue, emphasized by the charge, related to his wrongful employment. There should be a reversal of the judgment and order and the granting of a new trial, cost's to abide the event. Jenks and Carr, JJ., concurred; Hirschberg, P. J., and Woodward, J., dissented. Judgment and order reversed and ■ new trial granted, costs to abide the event.