course, and refrain from proper questions, so as not to reveal that the defendant is insured. The counsel for the insurance company and its investigators see the witnesses, bring them to their offices, and the company's office, and take their statements, and come into court openly and try the case, and yet seem to be under the strange notion that the jurymen do not know it, and that the plaintiff's counsel must avoid proper questions that would reveal it.

It is also urged that it was reversible error to admit in evidence the notice under the employer's liability act (chapter 600, p. 1748, Laws 1902), and for the trial judge to read to the jury section 3 of the said act and charge that it was applicable to the case-viz., the provision making the question whether continuance at work by the plaintiff after he discovered the danger from the neglect of the defendant by which he was hurt was negligence contributory to the injury, or an assumption of the risk by him, one for the jury-for two reasons: First, because the complaint did not allege any change in the law created by the said act as applicable to the case, or any particular fact making it applicable; and, second, because the evidence showed a liability, if any, under the common law unchanged by the said act.

As to the first, the complaint does not need to contain specific allegations of negligence, liability or benefit created by the act. The act changes or creates no rule of pleading. An action that comes or may come under its benefits is not what is called a statutory action. If the plaintiff's proofs do not bring the action under the benefits of the act the action cannot be dismissed for that reason; on the contrary, there may be a recovery under the common law. The plaintiff is not obliged to bind himself down in his complaint to a case that can rest only on the provisions of the act. The act makes only two changes of the common law rules of negligence, viz.: First, that the negligence of an employé whose whole or principal duty is that of superintendence shall be the negligence of the master, instead of that of a fellow servant only; second, that the continuance of an employé at work after he discovers a risk arising from the master's negligence shall not, as matter of law, be considered negligence or an assumption of the risk by him, but shall be a question of fact for the jury. To get the advantage of these changes, the notice required by the act must be served within 120 days and the action begun within a year. If both of these things were not done, then the advantages of the act cannot be taken. Now, the complaint does not have to allege anything to show that his case is or may be ruled by the said two substantive changes by the statute, except that he served such notice. It is enough that it allege-and it should only allege in order to be in scientific form-that the negligence alleged was by the defendant, leaving it to be shown by the evidence how it was his negligence, i. e., whether by his personal act or omission or by that of his superintendent, or in some other way. If by negligence of a superintendent, it is the negligence of the master; if by that of some fellow servant, it is not. A proper complaint is never of negligence of the defendant "by" his superintendent or "by" his agent, or any one, but simply alleges negli

son or by or through another. Harris v. Baltimore Machine & Elevator Co., 112 App. Div. 389, 98 N. Y. Supp. 440; Riley v. McNulty, 115 App. Div. 650, 100 N. Y. Supp. 985. Our minds should not be drawn away from so plain a matter of pleading by inadvertent utterances to be found here and there.

As to the second, since the plaintiff recovered only on common law negligence, namely, the failure to furnish a signalman, accompanied by lack of light, the admission of the notice in evidence was, if an error, an entirely harmless one. And as under the common law the question of the negligence or assumption of risk of the plaintiff was under the facts in this case a question of fact for the jury, the charge of the learned trial judge that the statute made it such a question of fact, was, if an error, an entirely harmless one. The law made it a question for the jury, and whether statute or common law is unimportant. But the learned trial judge was not in error, harmless or otherwise, in charging that the said provision of the statute was applicable to the case. It is as follows:

"In an action maintained for the recovery of damages for personal injuries to an employé received after this act takes effect, owing to any cause for which the employer would otherwise be liable, the fact that the employé continued in the service of the employer in the same place and course of employment after the discovery by such employé, or after he had been informed of, the danger of personal injury therefrom, shall not, as matter of law, be considered as an assent by such employé to the existence or continuance of such risks of personal injury therefrom, or as negligence contributing to such injury."

An injured employé may give the notice prescribed by the act and bring his action within the time limited by the act, for the sole purpose of getting the benefit of this particular change of the common law rule-if, indeed, the change is not one of general application, regardless of the giving of notice and commencing the action within the time specified by the act, as seems to be plainly intimated in Rice v. Eureka Paper Co., 174 N. Y. 397, 66 N. E. 979, 62 L. R. A. 611, 95 Am. St. Rep. 585. If the requirement of the notice, and the action be brought within a year be taken out of the act—and they seem to have been an interlineation-there is left a plain, consistent and workable act of general application. These two requirements contract and distort the act, and gave rise to the decisions of the courts that actions might be brought without giving the notice, and not subject to the said short limitation, but that the benefits of the act would not apply to them. The resulting confusion will continue until the said two requirements be taken out of the act and it thereby becomes one of general application.

The foregoing covers every point presented for the appellant; but it is pointed out among us that there is an exception to a refusal of the trial judge to charge a request of the defendant "that there is no evidence in this case to warrant a finding that there was any defect in the ways, works or machinery furnished by the defendant which in any way contributed to this accident." The learned counsel for the appellant has presented no such point to us orally or in his brief, and

the brief for the respondent is properly confined to answering the points presented by the brief for the appellant. I am therefore unwilling to vote to reverse on the ground of such refusal, even if it appear to be an error. Counsel for the respondent has had no opportunity to discuss it. Our rule requiring the appellant's brief to be filed in advance of the argument so that the respondent may know the grounds on which a reversal is to be asked for, and answer them, is a very misleading one if we are to search for and reverse on errors not presented to us by counsel for appellants. There may be exceptional cases where that should be done for the sake of justice and so that wrong may not result from neglect or ignorance, but this is not such a case. And if the point had been presented to us, it would have to be observed that nowhere, in the complaint, the bill of particulars, by the evidence, or during the course of the trial, did the plaintiff claim that there was any defect in the "ways, works and machinery," or any negligence whatever, other than that the defendant failed to furnish sufficient light, and the said signalman, or else some warning by whistle or bell of the swinging of the bucket. That being so, the request was irrelevant, and therefore properly refused. Moreover, may not the absence of light be properly called a defect in the "ways, works and machinery"? I am unwilling to vote otherwise without being first aided by argument at our bar. The phrase is a comprehensive one, new to our legal terminology, and far from being fully developed and defined. The same observations are applicable in respect of the absence of a warning bell or whistle in lieu of a signalman. It is said that the request was made necessary because the learned trial judge read section 1 as well as section 3 of the said statute, and said it was applicable. But on a reading of the whole charge it will be seen that he submitted to the jury no question of negligence except in respect of the absence of a signalman, or of a warning bell or whistle, and the lack of light. It were far better if charges always presented the precise questions of fact to be decided, instead of being mere legal essays or statements of abstract principles, but perfection is not of this world. A point was presented that the employer's liability act had no application at all to the case, but that is quite another thing. In place of pointing out the specific error being now discussed, it drew the mind away from it. It is also true that near the end of his charge, and after having stated the said questions of negligence involved, the learned trial judge, in summarizing, stated as a question. whether the defendant furnished the plaintiff a safe place to work. But this again had reference to the said lack of light, etc., and lack of light may make a place unsafe. The charge may lack precision, but we must take it as a whole. The question was, after all, whether the lack of light was a source of danger to the plaintiff, and whether you say it made his place of work an unsafe one, or express it otherwise, does not change the substance. And here, again, the point was not presented to us, and should not be considered. The learned counsel for the respondent was not called upon to argue it by counsel for the appellant, and had no reason or occasion to argue it.

counsel, and should not be reversed except for some error presented

to us.

The judgment should be affirmed.

RICH, J., concurs.

PALTEY et al. v. EGAN.

(Supreme Court, Appellate Division, First Department. May 7, 1909.) 1. Master and Servant (§ 322*)—INDEPENDENT CONTRACTORS—INJURY TO TENANT'S GOODS.

Where a landlord contracted with an independent contractor for the excavation of a lot adjoining the building occupied by the tenant as a store, the landlord was not liable for injuries to the tenant's goods by the collapsing of the building after the shoring was removed by the contractor, where the landlord was not present when it was removed and had no knowledge thereof; the building having been properly shored.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 1263; Dec. Dig. § 322.*]

. 2. APPEAL AND ERROR (§ 171*)-REVIEW-CHANGE OF THEORY ON APPEAL. The theory of the case cannot be changed on appeal in order to procure a reversal; and where, in an action for damage caused by the collapse of defendant's building, which was occupied by plaintiff, plaintiff did not object to trying the case on the theory of negligence in causing the building to collapse, he could not urge defendant's liability on appeal on the ground of his breach of covenant as a landlord.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 10531055; Dec. Dig. § 171.*]

Laughlin, J., dissenting.

Appeal from Special Term, New York County.

Action by Adolph Paltey and another against Patrick B. Egan. From a judgment dismissing the complaint, plaintiffs appeal. Affirmed.

See, also, 58 Misc. Rep. 345, 111 N. Y. Supp. 13.

Argued before PATTERSON, P. J., and LAUGHLIN, McLAUGHLIN, HOUGHTON, and SCOTT, JJ.

Louis J. Vorhaus, for appellants.

James Kearney, for respondent.

HOUGHTON, J. On a former trial plaintiffs recovered a verdict against the defendant for injury to their merchandise on the announced theory of a violation of the provisions of the Building Code in causing an excavation more than 10 feet below the curb line. This court held that the action was not maintainable on that theory. 122 App. Div. 512, 107 N. Y. Supp. 444.

The complaint contains appropriate allegations in negligence, and the present trial was had upon that theory. The jury rendered a verdict in plaintiffs' favor. By consent the court reserved decision upon the motion to dismiss the complaint until the coming in of the verdict. On the verdict being rendered, the court set it aside and granted the motion dismissing the complaint.

•For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

The wall of the building occupied by plaintiffs and owned by the defendant fell into an excavation on the adjoining lot, also owned by defendant. The defendant had let the contract for the excavation to an independent contractor. The court, without objection by plaintiffs, properly eliminated any negligence because of improper excavation, and submitted to the jury the question of defendant's negligence in failure to observe the dangerous condition of the wall and failure to remedy it by shoring up. The evidence discloses that the wall had been properly shored up, but upon the shoring being taken away by the contractor the wall immediately collapsed. There is no proof that the defendant was present when this shoring was removed, or that he knew of its being removed, and failed to protest. The court was therefore right in saying that there was no evidence upon which negligence on his part could be founded in this respect.

The plaintiffs now seek a reversal of the judgment on the ground that, they being tenants of the defendant, he as landlord violated his duty to them in causing, by himself or through his contractor, the collapse of the building which they occupied. The difficulty with this position is that by acquiescence of the plaintiffs the cause was tried, not on this theory, but on the theory of negligence. A party cannot acquiesce in the trial of a cause upon a specific theory, and then urge as ground for reversal that he has established a cause of action on an entirely different theory. The plaintiffs had obtained an order permitting them to amend their complaint, by changing it to breach of covenant, the terms of which they refused to accept. Even if the complaint under its allegations could be construed to be one for breach of covenant, the case was not tried upon that theory. It was tried as an action in negligence, and the court was right in saying that the plaintiff failed to prove a cause of action. There was no suggestion that the case be submitted on any other theory, or that the complaint stated other than a cause of action for negligence, and before the summing up the court announced upon what theory the question would be submitted to the jury, and there was no protest against following the course marked out by the court.

Under the circumstances, the dismissal of the complaint was proper, and should be affirmed.

Judgment affirmed, with costs.

PATTERSON, P. J., and McLAUGHLIN and SCOTT, JJ., concur. LAUGHLIN, J., dissents, on his dissenting opinion on former appeal. 122 App. Div. 512, 107 N. Y. Supp. 444.

BLAIR et al. v. MINZESHEIMER et al.

(Supreme Court, Appellate Division, First Department. May 7, 1909.) 1. APPEAL AND ERROR (§ 1194*)-REMAND-CONSTRUCTION OF DECISION.

Where the court on appeal reversed a judgment for plaintiff because the verdict was against the evidence, without suggesting that there was not a question for the jury, or that the trial judge would have been justified in directing a verdict for defendant, the trial court on a subsequent