I favor affirmance for the following reasons:
First. In my opinion the proposed amendment attempts to set up a new cause of action under the Federal Safety Appliance Act (Ward v. Erie Railroad Co., 230 N. Y. 230), but the plaintiff is not within the class protected by section-4 of the Federal Safety Appliance Act (27 U. S. Stat. at Large, 531) in question, and, therefore, the amendment should not be allowed.
The Supreme Court of the United States seems to differentiate between accidents resulting from a failure to provide a coupler which will function in coupling or uncoupling without requiring the presence of an operator between the cars and which will also be effective as a connecting link between cars, and accidents having no relation to these operations and functions of the coupler. In the former class of accidents all employees are protected. (Louisville & Nashville R. R. Co. v. Layton, 243 U. S. 617.) In the latter the statute is not applicable. (Lang v. New York Central R. R. Co., 255 U. S. 455, affg. 227 N. Y. 507; St. Louis & San Francisco Railroad v. Conarty, 238 U. S. 243.) Ward v. Erie Railroad Co. (230 N. Y. 230) falls within the former of these two classes. The instant case falls within the latter for the plaintiff’s injuries arose from a cause entirely unconnected with the operation of a coupler.
Second. If the amendment be held not to attempt to set up a cause of action under the Federal Safety Appliance Act, but merely to amplify the allegations of negligence, the plaintiff is in no better position. Here again only those for whose protection the statute was enacted can claim its benefits. (Di Caprio v. New York Central R. R. Co., 231 N. Y. 94; Lang v. New York Central R. R. Co., supra.) The plaintiff, as pointed out above, is not within the protected class.
The application to amend was, therefore, properly denied.
*298Order, so far as it refuses to permit the complaint to be amended respecting the unsafe and insecure grab irons or handholds, reversed, and complaint permitted to be amended as proposed by the plaintiff, and as so modified the order is affirmed, with ten dollars costs and disbursements to the plaintiff.