This is a statutory action to recover damages for the death of plaintiff’s intestate, and the demurrer is upon the ground that the complaint fails to state facts sufficient to constitute a cause of action. The complaint shows that letters of administration were duly issued to the plaintiffs and that decedent left a widow and two brothers.. If the decedent’s death was due to the wrongful act of the defendants, it was unnecessary to further allege the facts constituting the damages, for the law implies at least nominal damages. (Quin v. Moore, 15 N. Y. 432; Kenney v. N. Y. C. & H. R. R. R. Co., 49 Hun, 535; 2 N. Y. Supp. 512; Thomas v. Utica & Black River R. R. Co., 6 Civ. Proc. Rep. 353.) The complaint specifically alleges that the injuries which resulted in decedent’s death were received without any fault or want of care on his part. The real question is, therefore, whether it is sufficiently alleged that the injuries were caused by the negligence of the defendants. The complaint shows that on the 15th day of March, 1901, and for some time prior thereto, the defendants were copartners in the general contracting business and engaged in the erection of a certain building or power house “ at or near 74th Street and the East River” in the city of Hew York; that decedent was in their employ on said work as a laborer; that at the time and place aforesaid, “ while the deceased was performing certain work and labor so directed to be done and performed by the defendants,” they, in disregard of their duty to provide a reasonably safe place for him to perform his work in, “ negligently Suffered and permitted the flooring of said building where the deceased was so employed to be and remain in such an unsafe and insecure condition that the deceased fell through the same to the basement of said building,” thereby sustaining injuries which resulted in his death ; that “ said injuries were so sustained” and the death of decedent was caused “ solely because of the carelessness and neg: ligence of the defendants.”
In determining the sufficiency of the allegations of this complaint it must be borne in mind that the defendants are individuals and not a corporation. If it appeared that a corporation were defend; ant, or that these defendants furnished suitable material and competent help and delegated the work to a superintendent or general foreman; perhaps the fair inference would be that the injuries arose *164from the negligence of co-servants in performing a. detail of the work, for Which the master would not he responsible. (Perry v. Rogers, 157 N.Y. 251.) This rale, however, would not relieve these defendants from their personal negligence. On demurrer, the complaint is to be sustained if the facts alleged and those which may be implied therefrom by reasonable and fair in tendment are sufficient to constitute a cause of action. (Coatsworth v. Lehigh Valley R. Co., 156 N. Y. 451.) The complaint, we think, fairly alleges that the decedent was, at the precise time and place of receiving the injuries, engaged in the performance of duties to which he had been assigned by the defendants, and that he was precipitated to the basement of the building owing to the unsafe and insecure condition of the flooring, negligently caused and permitted by the defendants personally. • It is not to be inferred from the fact that the building was in process of erection that the flooring was rendered unsafe by the co-employees of the decedent, for the charge is that the defendants “ negligently suffered and permitted ” it “ to be and remain ” in an unsafe, and insecure condition. Negligence is really a conclusion of fact, and it is sufficiently charged in this complaint to successfully resist a demurrer. (Oldfield v. N. Y. & Harlem R. R. Co., 14 N. Y. 310; Edgerton v. N. Y. & Harlem R. R. Co., 39 id. 227, 230; Leeds v. N. Y. Telephone Co., 64 App. Div. 484; Jackman v. Lord, 56 Hun, 192; 9 N. Y. Supp. 200; McCarthy v. N. Y. C. & H. R. R. R. Co., 24 N. Y. St. Repr. 924.)
If the facts constituting the negligence are not alleged with sufficient definiteness to enable the defendants to prepare for trial they have a remedy either by a motion to make the complaint more definite and certain or for a bill of particulars, but the facts necessarily admitted by this demurrer would, we think, entitle the plaintiff to recover.
The interlocutory judgment should, therefore, be reversed, with costs, and the demurrer overruled, with costs, but with leave to defendants to answer upon payment of the costs of the appeal and of the demurrer.
Patteksoh and Hatch, JJ., concurred; Yah Bkuht, P. J., and Ihgkaham, J., dissented.