Bertolami v. United Eng'g & Contracting Co.

• Decision Date: 04 March 1910
• Citation: 198 N.Y. 71,91 N.E. 267
• Court: New York Court of Appeals Court of Appeals
• Parties: BERTOLAMI v. UNITED ENGINEERING & CONTRACTING CO.

198 N.Y. 71

91 N.E. 267

BERTOLAMI

v.UNITED ENGINEERING & CONTRACTING CO.

Court of Appeals of New York.

March 4, 1910.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Pasqualina Bertolami, administratrix of George Bertolami, deceased, against the United Engineering & Contracting Company. From an order of the Appellate Division (132 App. Div. 804,117 N. Y. Supp. 826), reversing a judgment for plaintiff, she appeals. Order of Appellate Division reversed, and judgment of Trial Term affirmed.

See, also, 125 App. Div. 584,109 N. Y. Supp. 1006; 120 App. Div. 192,105 N. Y. Supp. 90.Thomas J. O'Neill, for appellant.

Theron G. Strong, for respondent.

HISCOCK, J.

While plaintiff's intestate was at work for the defendant in the construction of the Pennsylvania Terminal tunnel in New York City, a mass of rock and dirt fell upon him and killed him. It was found upon the trial, and has been assumed upon this appeal, that the accident was the result of negligence on the part of an employé charged with duties of superintendence in not properly shoring up that portion of the tunnel. The action was brought under the employer's liability act (Laws 1902, c. 600), and the judgment recovered has been reversed solely on the ground that the notice served by plaintiff in accordance with the provisions of that act was insufficient.

This notice reads as follows: ‘Notice. To United Engineering & Contracting Company, 32 East 33rd Street, New York City-Sirs: Please take notice that on August 7th, 1906, George Bertolami, deceased, then in your employ, received injuries to his body which resulted in his death, and that said injuries and death were received while working in connection with the contracting operation of the Pennsylvania Terminal excavation on East 33rd street, New York City, Manhattan. That the injuries which caused the death of the said George Bertolami were caused without any negligence on his part in any wise contributing thereto, but solely by your negligence, as his master, in that you failed to furnish him with a reasonably safe place to work, and failed to reasonably safeguard, inspect and keep safe the place, appliances and apparatus used in connection with said contracting operation, and failed to furnish deceased and said contracting operation with reasonably safe appliances, apparatus, cables, ropes, wires, buckets, ways, works and machinery with which to do said work, and knowingly employed and retained incompetent foremen and co-workmen to guide, direct and assist him in the performance of his work, and failed to formulate, promulgate and enforce proper rules and regulations for the safety of deceased and his said co-employés, as a result of all of which large quantities of rock and earth and a bucket were caused to fall upon the body of the said George Bertolami, and injure and kill him, as aforesaid. Yours, etc., [Signed] Pasqualina Bertolami, Administratrix.’

In attempting to sustain the decision of the Appellate Division that this notice was insufficient, the defendant urges two objections which are not within its reach. It contends that the notice comes within the condemnation pronounced by us on the one involved in Finnigan v. N. Y. Contracting Co., 194 N. Y. 244, 87 N. E. 424,21 L. R. A. (N. S.) 233, as stating different, inconsistent, and inapplicable causes of injury, and also that it does not state with sufficient definiteness the place of the accident. No such objections, in substance, as these were taken to the notice on the trial. The objection taken at the time the notice was introduced in evidence, and repeated on the motion for a nonsuit and by request to charge, was simply and solely ‘to the sufficiency of said notice on the ground that it fails to state as a cause of injury the negligence of a superintendent or person acting as such.’

The available question, therefore, becomes whether the notice as a whole and relieved from these other criticisms does contain enough to comply with the requirement of the statute that it should state the ‘cause of the injury,’ and this question we are agreed must be answered in the affirmative.

At the outset, and as a most important consideration in the determination of this question, it is to be remembered that the notice does describe with substantial accuracy and completeness the exact physical cause of the injuries. It only becomes a subject of criticism when it proceeds to enumerate the defaults on the part of the employer which made the accident...