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Matrusciello v. Milliken Bros.

Supreme Court of New York, Appellate Division

December 30, 1908


Thomas J. O'Neill, for appellant.

William L. Kiefer, for respondent.



I think the notice served in this case stated the time, place and cause of the injury with sufficient accuracy. It was as follows:

" To Milliken Brothers, Inc., No. 11 Broadway, New York City-Sirs: Please take notice that I, the undersigned, on April 22nd, 1907, at about 10:30 p. m. while in your employ working in connection with your contracting operation at Mariners' Harbor, Staten Island, New York, was struck, injured and run over by one of your cars or trains and sustained serious, painful and permanent injuries to my body, especially to my leg which was so injured as to necessitate amputation thereof, and a serious and permanent shock to my nervous system. That said injuries were caused without any negligence on my part in any wise contributing thereto, but solely by your negligence, in that, as my master, you failed to furnish me with a reasonably safe place, appliances, ways, works, machinery, and apparatus in and in connection with which to work, and failed to reasonably safeguard, inspect and keep safe the same, and knowingly employed and retained incompetent foremen and co-workmen to guide, direct, and assist me in the performance of my work, and failed to formulate, promulgate, and enforce proper rules and regulations for my safety and the safety of said co-employes, and in that your employes charged with and exercising superintendence over me negligently and carelessly conducted themselves in connection with said acts of superintendence, as a result of which I was caused to be struck and injured by said train and cars, as aforsaid.
" Yours, etc., [Signed] Lorenzo Matrusciello."

In each of the cases cited to sustain the respondent's contention, the notice contained but a general statement of different grounds of negligence, and was in effect nothing more than a statement that the injury was caused by the employer's negligence. The requirement of [114 N.Y.S. 224] the statute is that the notice shall contain a statement of the cause of the injury, and the purpose of it is that the employer may be informed of what happened so that he may intelligently investigate the case. Palmieri v. S. Pearson & Son, 128 A.D. 231, 112 N.Y.Supp. 684, and cases cited. Eliminating the general statements of negligence which are mere useless verbiage and would be useless even in a complaint except possibly to embarrass the plaintiff, the notice states the time, place, and cause of the injury as follows: Time, about 10:30 p. m. on April 2, 1907; the place, where the defendant's contracting operations were being carried on at Mariners' Harbor, Staten Island; the cause, the plaintiff's being struck and run over by one of the defendant's cars or trains. Here is a definite statement of all the statute requires. O'Donnell v. Parker, 125 A.D. 475, 109 N.Y.Supp. 875.It follows that the judgment should be reversed for the error in dismissing the complaint on the opening for insufficiency of the notice. All concur.

RICH, J., concurs in separate opinion, with whom WOODWARD, J., concurs.


This action is to recover damages for a personal injury. The complaint alleges facts sufficient to constitute a cause of action at common law, as well as a cause of action under the statute known as the employer's liability act, though not separately stated. This form of pleading is authorized, and a plaintiff may be permitted to recover when the evidence given upon the trial establishes a cause of action under either the common law or the employer's liability act. Kleps v. Bristol Manufacturing Co., 107 A.D. 488, 95 N.Y.Supp. 337; Acardo v. N.Y. Contracting & Trucking Co., 116 A.D. 793, 102 N.Y.Supp. 7. After counsel for the plaintiff had opened his case to the jury, the court directed that proof of the form and service of the notice be first tendered, and the defendant thereupon produced the notice served upon it, which the plaintiff introduced in evidence. The record shows the following to have then occurred:

" The Court: Have you any further evidence with respect to the giving of the notice?
" Mr. O'Neill: The answer admits the service of the notice.
" The Court: Now, with respect to the notice itself, its service, being admitted, have you on that subject ...

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