The plaintiff has thrice recovered a verdict for damages, and we have twice reversed the judgment in her favor. The first reversal ' was for error in refusing to charge (120 App. Div. 192), the second by reason of variance between the complaint and proof (125 id. 584). Neither of those defects. are found in the present record. The action is brought under the Employers’ Liability Act, the negligence now charged in the complaint being that of a superintendent, or a person acting as superintendent. We are now asked to-reverse the present judgment because (as it is said) the notice of claim served upon defendant is insufficient under the -statute. The ground of insufficiency, as stated by. defendant’s counsel in his motion to dismiss, is- that it “ does not state as cause of injury negligence of a superintendent or of a person acting as such With the authority and consent of .the employer.” In this case, as claimed by plaintiff and as found by the jury, the cause of injury to the deceased was the fall of rock in the tunnel, and the cause of the fall of tlie. -rOck was the negligence of a superintendent. The objections made to" the notice, therefore,. amount to this, that to be sufficient the notice must state the cause of the cause which injured the deceased. This is not what the statute in terms requires. Section 2- of chapter 600 of the Laws Of 1902 provides that no action may be maintained' under the act “ unless notice of the timé, place and cause, of the injury is given to the employer within tone hundred and twenty days.” As has frequently been remarked in cases among those so carefully collected by Mr. Justice Clarke, the act imposed upon employers a new liability not known in the-common law. Hence, provision was made for notice to be promptly given which should *817enable the employer to identify the casualty for which it was intended to hold him liable, and to ascertain the facts to the end that he might prepare a defense. Whatever may be the practice in large communities where important works are in progress, the Legislature certainly never contemplated that there would be a lawyer, or a lawyer’s agent, constantly at hand to offer legal services to injured workmen, and to. draw, in legal form and phraseology, a notice to be given to the employer. As the Court of Appeals has recently said: “We have no idea that the Legislature intended to require a notice of such technical form and perfection that it would satisfy the tests to be applied to a pleading, and demand a skill in preparation which would be entirely beyond the capacity of - a layman.” (Finnigan v. New York Contracting Co., 194 N. Y. 244.) The notice in the present case reads as follows:
“ To United Engineering & Contracting Company,-
“ # 32 East 33rd Street,
“ New York City:
“Sirs.— Please take notice that on August 7th, 1906, Ceorge Bertolami, deceased,,then in your employ, received injuries to his body which resulted in his death, and that said injuries and death were recéived while working in connection with the contracting operation of the Pennsylvania Terminal excavation on East 33rd Street, New York City, Manhattan.
“ That the injuries which caused the death of the said George Bertolami were caused without any negligence on his part in any wise contributing thereto, but solely by your negligence, as his master, in that you failed to x furnish him with a reasonably safe place to work, and failed to reasonably safeguard, inspect and keep safe the place, appliances and apparatus used in connection with said contracting operation, and failed to furnish deceased and said contracting operation with reasonably safe appliances, apparatus, cables, ropes, wires, buckets, ways, works and machinery with which to do said work, and knowingly employed and retained incompetent foremen and co-workmen to guide, direct and assist him in the performance of his work, and failed to formulate, promulgate and enforce proper rules and regulations for the safety of deceased *818and Ins said co-employees, as a result-of all of which large quantities of rock and earth and a bucket were caused to fall upon the body of the said George Bertolami and injure and kill him, as aforesaid.
“Yours, etc.,
“(Signed) PASQUALINA BERTOLAMI,
“ Administratrix.”
On reading the italicised words in this notice, and disregarding as surplusage all the rest, it will be seen that it complies literally with the requirements of the statute. It states the time of the injury as August Ü, 1906 ; the place as the Pennsylvania Terminal excavation on East Thirty-third street, New York city, Manhattan, and as the cause of the injury that “ large quantities of 'rock and earth and a bucket were caused to fall upon the body of the said George Bertolami, and injure and kill him, as aforesaid.” It does not state what' caused the rock and earth to fall, which, as the evidence showed, was the negligence of a superintendent. So we have presented a typical case bf a notice which does state the time, place and cause of the injury to the deceased, and which attempts to state, but does not, the culpable act which induced the accident. It may be conceded at once, as we have already decided, that the statements contained in the notice would not be sufficient, if embodied in a complaint, to state a cause of action for the negligence of a superintendent ; ■ but as I read the statute and the authorities, that is precisely what is not required in a notice. Its purpose is not to state a cause of action, but to give notice of the fact of an injury, and of its cause, meaning thereby.the immediate, and not a remote, cause. There have been, of course, many cases in which the notice was obviously insufficient and lias been so held. There are others which have been held insufficient because they failed to state the cause of the injury, although-they did charge faults which might have led .to a cause of injury. Such was the Finnigan case cited above. Such also was Barry v. Derby Desk Co. (121 App. Div. 810) in which the cause of the injury was the breaking of a scaffold plank. The notice! charged negligence in various forms but did not state what accident or incident caused the injury. In the majority opinion the court, said: “Under such a notice as this no one could possibly determine just what accident or incident caused the plaintiffs injury which, as
*819the evidence showed, was the breaking of a scaffold plank. What the plaintiff has given notice of is not the cause of his injury, but the cause of that cause. This, as 1 consider, was not a substantial compliance with the statute.” In Lobasco v. Moxie Nerve Food Co. (127 App. Div. 677) the cause of the injury stated was that “ one of the said bottles exploded and caused the destruction of my eye, as aforesaid.” The notice attempted to state the reason for the accident, but failed to state what proved to be the true reason, to wit, that the plaintiff had not been furnished with a mask to. guard his face from flying glass. This court held the notice good, saying “ the notice contains all that the statute requires. It sets forth the time, place and cause of the injury.” In Matrusciello v. Milliken Brothers, Inc. (129 App. Div. 661) the notice in addition to the time and place stated that plaintiff was “ struck, injured and run over by one of your cars or trains & sustained serious, painful and permanent injuries.” It also undertook to state various kinds of negligence as leading up to the accident. The notice was held to be good not because of, but rather in spite of its general allegations of negligence, the court saying: “ Eliminating the general statements of negligence, which are mere useless verbiage and would be useless even in a complaint, except possibly to embarrass the plaintiff, the notice states the time, place and cause of the injury as follows: Time, about ten-thirty p. M.,.on April 22,1907; the place, where the defendant’s contracting operations were being carried on at Mariners Harbor, Staten Island; the cause, the plaintiff's being-struck and run over by one of the defendant’s ears or trains. Here is a definite statement of all the statute requires.” In Massachusetts, where the requirements of the statute as to the contents of the notice, are the same .as our own, the question has frequently been passed upon. In Lynch v. Allyn (160 Mass. 248) the notice set forth the time and place, and stated the cause of the injury as follows: “ the falling of a bank of earth.” The cause of the accident was the negligence of defendant’s superintendent. The objection taken to the notice by defendant was that it did not refer to the superintendent or his conduct. The court .said : “We do not think it was necessary that it should do so. The cause of the injury was properly stated. It was not necessary for the plaintiff to state the cause of that cause.” In Brick v. Bosworth (162 Mass. 334), a death case, the notice stated *820as the cause of the injury, “ The cause of the death of my said husband was the falling of a derrick upon him on account of the same being improperly or insecurely fastened.” It was held that this notice was sufficient, and that under it the plaintiff might recover either upon the.ground of the defendant’s negligence or for a defect in the ways, works and machinery. The Employers’ Liability Act is a comparatively new one in this State and it is not strange that it is difficult to harmonize all that has been said upon it. As I read. the authorities, however, it has uniformly been held, whenever the point has been directly involved, that a notice is sufficient if it complies literally with. the words of the statute and states the time, place and cause of the. injury,; that it is unnecessary to state the culpable act which led to the acoiclent which caused the injury; that the attempt to state the cause of the accident may bé' disregarded as surplusage, and if such an attempt is made but fails to specify, the right cause of the accident, it will not vitiate the notice,, provided the cause of the injury is clearly and distinctly set forth. This, as I understand it, is the intent of the statute, for it must happen, especially in death" cases, that the person injured or Ms representative may be fully cognizant of what caused the injury,. but quite unable to specify whether that cause resulted from the negligence of a superintendent, or a defect in the ways, works or machinery or any other matter which would east liability upon an employer. In my opinion, the notice under review meets all the requirements of the statute. If .the present appeal were from the first judgment in this action I should entertain some doubt whether the evidence justified the verdict. Three juries have found in plaintiff’s favor, and, in my opinion, it is too late to question their findings upon the facts.
I am, therefore, in favor of an affirmance, with costs. i
-Ingraham, J., concurred.
Judgment and order reversed on questions of law only, new trial ordered, costs to appellant to abide event. .