(dissenting):
It is manifest that there is no propriety in requiring the plaintiff to state separately the facts constituting his cause of action against each of the defendants on their several liability unless the circumstances be such that the defendants cannot be joined in a single action as joint tort feasors. The books are full of authorities in which actions have been sustained against two or more defendants as wrongdoers jointly liable where their separate acts of negligence contributed to the injury of the plaintiff, although the parties defendant had no connection with one another and the injuries would have resulted from the negligence of one of them without the concurrent negligence of the other.
The plaintiff alleges that he was in the employ of the defendant Charles A. Co wen & Co., which had the contract for the construction of the brickwork on a building which was being erected on the southwest corner of Seventeenth street and Broadway, in the borough of Manhattan, New York, and that the defendant Otis Elevator Company had a contract for the installation of the elevators in the same building ; that it was the duty of his employer to furnish him a safe place for the performance of his duties and to place proper and sufficient covering over him to protect him from falling material while he was at work, and that it failed to perform this duty; that it was the duty of the other defendant to so conduct its work as not to allow material to fall and injure him, who was lawfully employed on the building ; that through the negligence of the Otis Elevator Company, its servants, agents and employees, a heavy piece of iron was permitted to fall, and there being no covering to protect him therefrom, it struck and in jured the plaintiff. lie brings the action to recover the damages sustained thereby and he seeks to hold the defendants as joint- tort feasors for their several acts of negligence which concurred in the infliction of the injuries upon him.
I think it is well settled by a long line of decisions in the Court *372of Appeals that such an action may be maintained against the wrongdoers jointly, notwithstanding the fact that the plaintiff might have sued the defendants separately, and in such cases a settlement with one discharges the others, and a satisfaction against one, whether the action be brought severally or jointly, discharges the liability of the others, and that when he elects to join them it becomes a single cause of action for the damages sustained by the concurrent negligence of all of the defendants. (Colegrove v. N. Y. & N. H. R. R. Co., 20 N. Y. 492; Barrett v. Third Avenue R. R. Co., 45 id. 628, 635; Arctic Fire Ins. Co. v. Austin, 69 id. 470; Slater v. Mersereau, 64 id. 138; Leeds v. N. Y. Telephone Co., 178 id. 123, opinion of Vann, J., and cases cited.) This question is not affected by the fact that there are allegations in the complaint on which plaintiff may claim that his cause of action against one of the'defendants is based on the Employers’ Liability Act, for it matters not whether the violation of duty which renders the defendant liable be a violation of a common-law or a statutory duty. . I am of opinion that but a single1 cause of action is stated and that the plaintiff cannot properly be required to divide it up into two sevéral causes of action against the respective defendants, and I, therefore, dissent.
Order reversed, with ten dollars costs and‘disbursements, and motion granted, with ten dollars costs;