' The recovery is sought to be sustained under chapter 657 of the Laws -of 1906, but as I construe the complaint that is not the. cause of action alleged, nor is it the theory upon which the action was tried and submitted to the jury. There is not a reference in the complaint to chapter 657 of the Laws of 1906, or any facts set forth' indicating, that the action is brought under that statute, and at the beginning of the trial the plaintiffs attorney elected to try the action as one to recover under -the common law, and the case was submitted to the jury upon this theory. '
In Gmaehle v. Rosenberg (178 N. Y. 147) the court held that the Employers’ Liability Act (Laws of 1902, chap. 600) gave an additional cause of action in that it prescribed that the master should be liable for the negligence of a superintendent or a person acting as such. The act of 19.06 gave an additional cause of action by extend^ ing the liability of the master beyond that imposed at common law and by the Employers’ ’ Liability Act. The act expressly recites that it creates a liability for certain acts “ in addition, to the liability now existing by law” and declares that persons who are intrusted with the authority of superintendence, control or command-of .other persons, or who have as fp part of their duty, physical control or • direction of 'the movement of a signal, switch, locomotive engine, car,-train or telegraph office, are vice-principals and are. not fellow-servants of the injured or deceased employee. By this act two' classes of employees are declared to represent the master : (a) Those who exercise superintendence or have authority to direct or control any other employee; and (b) those who have physical control or direction of so.me of the appliances for the movement of cars.
Where a recovery is sought under the Employers’ Liability Act (Laws of 1902, chap. 600) the complaint must show, by appropriate *713allegations, that the action is brought under that statute (Sutherland v. Ammann, 112 App. Div. 332), and the same is true where a recovery is sought under chapter 657 of the Laws of 1906. Where the right to maintain an action depends upon a statute, the plaintiff must, by an appropriate pleading, bring the action within the terms and conditions of the statute (Lewis v. Howe, 174 N. Y. 340); in other words, the complaint must clearly and unmistakably indicate, either by a reference to the statute itself or by alleging certain facts, that • the action is brought under the statute. The purpose of a complaint is ,to notify the person against whom a recovery is sought, the precise ground upon which the recovery is claimed. This purpose would be thwarted if a party could allege one cause of action and then recover upon another, or set forth general allegations entitling one to recover at common law and then recover under a statute. Itis true a pleading is to be liberally construed, but this presupposes, in case of a complaint, that the plaintiff has complied with the statute by setting forth in his complaint a plain and concise statement of the facts constituting his cause of action, and if a material statement is susceptible of two meanings, the one most unfavorable to the pleader must he taken. (Clark v. Dillon, 97 N. Y. 370.)
It is no answer to these suggestions, as it seems to me, to say that if the defendant wished to know which fellow-servant had'been negligent it should have applied for a bill of particulars or to make the complaint more definite and certain. It had a right to assume, inasmuch as no reference was made to the act of 1906, or any facts pleaded indicating that a recovery was claimed under that act, that the action was not brought to recover under that statute.
For these reasons I am unable to concur in the opinion of Mr. J ustice Ingraham.- I am of the opinion the judgment and order appealed from should be reversed and a new trial ordered.
Clarke, J., concurred.
Judgment and order affirmed, with costs.