The following is the opinion of Lambert, J., delivered at Special Term:
Lambert, J.:The plaintiff’s intestate was a fireman upon a locomotive of defendant. An explosion occurred, death resulted and this action is sought to be maintained to recover damages. The complaint was served setting up the alleged facts sufficient in form to recover at common law. Issue was joined. Thereafter and within the time, as matter of right, an amended complaint was served alleging in form an action at common law and one under the Employers’ Liability Act.* This motion is by the defendant to strike out the amended complaint and that plaintiff be compelled to elect which of the two causes of action alleged she will abide by upon the trial.
The right of recovery for negligence was a common-law action, but extended by statute † to a recovery in case of death. It may be said, therefore, that the action is founded on the Constitution and statutes. Since the decisions in Rosin v. Lidgerwood Mfg. Co. (89 App. Div. 245) and Gmaehle v. Rosenberg (178 N. Y. 147), it seems to be settled that the plaintiff has two remedies growing out of the same occurrences. The old remedy was not abolished by the enactment of the Employers’ Liability Act and the new remedy is cumulative. The allegations tendered in support of either remedy are the same except the allegation of the service of notice within the 120 days to bring the case within the Employers’ Liability Act. The two remedies arising from the same occurrences, the allegations being the same substantially, it may be assumed that the proof must quadrate therewith, hence no evidence will be required in support of one remedy over the other except the formal proof of the service of the 120-day notice.
*605The purpose of the present practice is to so situate the parties as to prevent surprise on the trial. In the absence of injury to the defendant, I think if an election is to be required, that the trial judge can best exercise this right of discretion.
Motion denied, without costs.
The defendant may have ten days after the entry and service of the order herein.
Laws of 1902, chap. 600.— [Rep.
See Code Civ. Proc. § 1902 et seq.— [Rep.