I concur in the opinion of McLennan, P. J., for affirmance, but. desire to say in addition:
It is not necessary to plead “ assumed risks.”
During all the years that negligence actions have been brought by employees and litigated it has never been held to be essential, and such a rule should not now be imported into the law relating to-those cases. The only excuse for doing so is the claim that the Court of Appeals so held in Dowd v. N. Y., O. & W. Ry., Co. (170 N. Y. 459). The question was not raised in that case, was. not discussed nor was this rule there held. The only intimation in the case looking in that direction was in a question asked by the judge who wrote the opinion. He did not answer the question in the affirmative and the editorial head note does not refer to it. The question there being considered was merely' where-the burden of proof upon the question of assumed risk rested, a!nd the court held that it was upon the defendant. Of that there could be no doubt. That, however, is far short of a holding that it must be affirmatively pleaded in the answer. The allegation in the complaint in an employee’s action is that the defendant was negligent in, failing to penorm a duty owing to the employee *137to furnish (for instance) a reasonably safe place to work. In effect, the allegations are that the duty was owing to the plaintiff and that it was not performed. A general denial, in. effect, denies that the duty to the plaintiff existed. Prima facie the duty wás imposed upon the defendant, but under the general denial the defendant may prove that the duty in the particular case did not exist because the plaintiff assumed the risk of working in the place as it was, although it may have been unsafe. The general denial should be held sufficient to enable the defendant to prove such assumption of the risk.
But even if technically or theoretically the court can reason out the necessity of ah affirmative allegation, still such a rule has never before been held, although actions for negligence have been brought and maintained by employees since a time when the memory of man runneth not to the contrary* and I think, therefore, there was no design in the Dowd case to establish this new rule of pleading, and that the Court of Appeals will not so hold when its attention is brought to the direct consideration of it. It was not so held in the Dowd case and I cannot believe it will be held in any other case.
Stover, J., concurred.
Judgment and order affirmed, with costs.