Crosby v. Charles A. Cowen & Co.

Dowling, J.:

The complaint herein sets forth two causes of action, although pleaded as one. One cause of action is stated against the defendant Charles A. Cowen & Co., the employers of plaintiff, who were the contractors for the brickwork of a certain building in the city of’Mew York, and who are alleged to have failed in their duty to provide the plaintiff with a good, safe and secure place wherein to perform his work for such defendant, and with a good, safe and secure covering over such place; by reason of which failure of diity on the part of that defendant a certain heavy piece of iron in the course of its descent struck plaintiff and inflicted upon him serious injuries. This cause of action is brought specifically under the Employers’ *370Liability Act (Labor .Lav/' [Consol. Laws, cliap. 31; Laws of 1909, chap. 36], art. 14), a notice given thereunder to such defendant being annexed to the complaint.

A second cause of action is stated against the defendant Otis, Elevator Company, which was the contractor for installing elevators in the same premises, and against which it is alleged that it, “ its agents and servants, negligently, carelessly and recklessly threw or permitted a heavy, piece of iron to fall from and over the floor of said building above the ■ place where plaintiff was working, down said elevator shaft,’7 whereby plaintiff was injured. The allegations , concerning the defendant Charles A. Co wen & Co. are contained in the paragraphs of the complaint numbered “ First,” “Third,” “Fifth,” “Seventh,” “Eighth,” “Ninth,” “Tenth” and “Eleventh.” None of these contains any mention of, or reference to, the defendant Otis Elevator Company. .' .

The allegations concerning the defendant Otis Elevator Company . are • contained in the paragraphs of the complaint numbered “Second,” “Fourth,” “Sixth,” “Twelfth” and “Thirteenth.”None of these contains any mention of, or reference to, the defendant Charles A. Cowen & Co. Nowhere is it alleged that there were concurring acts of negligence on the part of defendants. The acts of negligence complained of, are separate and distinct and constitute two causes of action, which should be separately stated and ' numbered. (Hamnstrown v. New York Contracting Co., 122 App. Div. 43.) As was said in Brown v. Thompson-Starrett Co. (139 App. Div. 632):“ The plaintiff’s error in attempting to sustain this form of complaint arises from the fact that he seems to consider that the happening of the .accident constitutes the gravamen of his cause of action. In this he is mistaken. The gravamen lies in the negligence which led to the accident, and to state a good cause of action the negligence must bé attributed to the particular defendant said to have been guilty thereof.” Where that is done, and it not only is not alleged that there were concurrent acts .of negligence, but the absence of such acts affirmatively appears and only independent acts of negligence are charged, then separate causes of action are set forth.

The order appealed from must, therefore, be reversed, with ten dollars costs and disbursements, and- the motion to require the *371plaintiff to separately state and number the facts constituting each cause of action against the several defendants must be granted,. with ten dollars costs.

Ingraham, P. J., McLaughlin and Scott, JJ., concurred; Laugiilin, dissented.