(dissenting). In July, 1914, plaintiff was a ‘ hodcarrier ’ ’ in the employ of Bing & Bing, building contractors. The plaintiff was engaged in wheeling mortar to-the bricklayers, pushing his wheelbarrow over a runway or gangplank. The gangplank or runway went across the top of a hole. This hole was made by the defendant, the Otis Elevator Corn*658pany, for the purpose of installing an elevator; it was required for the plunger of the elevator. The hole was being dug by means of a core barrel, sixteen inches in diameter by twenty feet in length. It was necessary at times to lift this core barrel out of the hole. While so doing the plunger was placed upon the plank or runway in such a way that the plank turned over or tipped up and threw the plaintiff, who was standing thereon, into the hole. The details of the accident and position of the plank, etc., were given in full by plaintiff. And if the narration of the plaintiff as to the nature of the runway, the work the defendant was engaged in and the manner in which the accident happened were true, and the jury has found that such narration was true, we think negligence upon the part of the def endant was sufficiently shown to sustain the verdict of the jury.
The appellant asks for a reversal upon two grounds, first, that the charge of the court was erroneous in not properly submitting to the jury, as a question of fact, the defendant’s alleged negligence. We think the court did in substance charge the jury sufficiently upon this point. The court stated to the jury:
“ The main question here is whether this man was hurt through the carelessness or negligence of any one else. If he was hurt through his own carelessness or his own negligence, why of course he cannot recover.”. The court then stated the facts alleged to constitute the negligence complained of, and adds:
“ Now if you first get settled through this testimony that that act was brought about or occurred through no neglect of this plaintiff, then the next question is, through whose neglect was it? ”
The court also further' stated: ‘ ‘ The neglect of this defendant is important. If this defendant was negligent through its workmen in not safe-guarding the appurtenances and appliances of this construction com*659pany, so that they would not injure them or the men on them, they owe a responsibility or take upon themselves the responsibility of any damages following this. ’ ’
While not as explicit as it might have been made, I think it is fair to assume that the jury understood that negligence on the part of the defendant was required to be shown before plaintiff was entitled to a verdict. The defendant took no exception to the portion of the charge now complained of, and it is too late to raise the objection in this court. The appeal is not from the order denying the defendant’s motion for a new trial but from the judgment.
The other ground upon which defendant asks a reversal is stated in his brief as follows: “ The plaintiff failed to establish sufficient facts to constitute a cause of action by failing to allege and prove an election in accordance with the Workmen’s Compensation Act.”
In other words, inasmuch as the plaintiff and the firm for which he was working came directly within the provisions of the Workmen’s Compensation Act, that before plaintiff could recover from a “ third person,” to wit, the Otis Elevator Company, he was required to file a notice of election as required by section 29 of that act.
The record discloses that plaintiff was in the employ of Bing & Bing and not the defendant, the Otis Elevator Company, and that Bing & Bing, plaintiff’s employers, were engaged in a character of business to which the Workmen’s Compensation Act applies; that Bing & Bing had complied with the provisions of the act for the protection of both plaintiff and themselves, and all were subject to its provisions.
Section 10 of the act, so far as. material, provides as follows:
*660“Liability for compensation.—Every employer subject to the provisions of this chapter shall pay or provide as required by this chapter compensation according to the schedules of this article for the disabil-" ity or death of his employee resulting from an accidental personal injury sustained by the employee arising out of and in the course of his employment, without regard to fault as a cause of such injury * *
Section 11. “Alternative remedy. The liability prescribed by the last preceding section shall be exclusive, except that if an employer fail to secure the payment of compensation for his injured' employees and their dependents as provided in section 50 of this chapter, an injured employee * * * may at his option elect to claim compensation under this chapter, or to maintain an action in the courts for damages * * * and in such an action defendant may not plead as a defense that the injury was caused by the negligence of a fellow servant or that the employee assumed the risk of his employment, or that the injury was due to the contributory negligence of the employee.”
Section 50 referred to provides that employers must procure a fund applicable to the payment of the amounts awarded to the injured employee by the commission, whose appointment is provided for in the act.
Section 52 provides that the failure of employers to secure the compensation “ shall have the effect of enabling the injured employee ” “to maintain an action for damages in the courts ” as-prescribed by section 11, which is abové quoted.
It will be observed that under the provisions of section 11 it is only when the employer fails to comply with section 50 requiring the employer to secure funds, etc., that he is authorized to bring an action in. the courts. Should the employer fail to provide the fund, as required by section 50, the employee may sue in the *661courts and certain specified defenses of the employer are cut oft, or the employee may file a claim instead of bringing a suit, and should he pursue the latter course provision in subsequent portions of the act is made for procuring the payment of the scheduled rate to the employee.
Section 18 provides that notice of an injury for which compensation is payable shall be given to the commission and employer within ten days after disability and prescribes how the notice shall be given, etc.
After the claim has been submitted to the commission full and ample provision is made for fixing the amount and securing payment to the person injured.
The above provisions are equally binding upon the employer and employees. And after the employer has conformed to the provisions of the act, in order to secure the payment of awards for injuries to the employees, the employees are precluded from bringing an action for damages. Not only does section 11 expressly provide that the liability of the employer shall be exclusive, but the tenor of the entire act indicates that such was its general purpose. To hold that the employee could elect to sue for an injury or accept the benefits of the act at his option, would make the employer liable for every injury to the employee and take away from him all defenses with no reciprocal benefits in return.
Sections 29 and 67 provide as follows:
“ Sec. 29. Subrogation to remedies of employees. If a workman entitled to compensation under this chapter be injured or killed by the negligence or wrong of another not in the same employ, such injured workman, or in case of death, his dependents, shall, before any suit or claim under this chapter, elect whether to Lake compensation under this chapter or to pursue his *662remedy against such other. Such election shall he evidenced in such manner as . the commission may by rule or regulation prescribe.”
“ Sec. 67. Rules. The commission shall adopt reasonable rules, not inconsistent with this chapter, regulating and providing for
“ 1. The kind and character of notices, and the service thereof, in case of accident and injury to employees ;
“ 8. Carrying into effect the provisions of this-chapter.”
The commission has adopted reasonable rules in reference to the form of the notice required and the service thereof.
Respondent maintains that this section does not apply to the present case; that the present action is not one under the terms of the act at all; hut against a third party with whom the plaintiff had no contractual relation.
If - respondent’s position is correct, section 29 becomes absolutely meaningless. This would he contrary to all rules of statutory construction. Respondent seeks to illustrate the soundness of his contention by instancing the case of an employee being injured while riding on a railroad train as a passenger for hire. This is not an analogous case. Such a case would not come within the terms of the section, for the reason that such an injury would not be one “ arising out of and in-the course of his employment.” Plaintiff’s injury did arise out of and in the course of his employment, and Bing & Bing, his employers, were required to compensate him for his injury. If respondent had been injured by a railroad company while traveling to and from the place of his employment, Bing & Bing would not be required to' compensate him under the provisions of the act because plaintiff’s injury would *663not have arisen out of and in the course of his employment.
Although in the ease at bar the injury to plaintiff was caused by a “ third party,” that is, a party with whom plaintiff had no contractual relations, viz., the Otis Elevator Company, still Bing & Bing, his employers, would have been required to compensate plaintiff had he filed his claim and given the notice required. Under the provisions of section 29, however, plaintiff had his option to take compensation under the provisions of the Compensation Act from his employers, Bing & Bing, or to sue the person through whose negligence he was actually injured. In either case, however, he is required to serve notice of his election, in the manner prescribed by the commission, and the commission has duly and properly prescribed the manner in which such notice shall be given. Section 29 of the statute, no doubt, had in contemplation just such cases as the present, where different contractors are working upon the same structure, and there is a question as to which contractor is liable for the injury.
The liability of the employer and the remedy of the employee being exclusive, and the plaintiff’s only remedy being under the statute, he was required to comply with the terms of the statute in order to be entitled to its benefits. The requirements of notice of election are, we think, conditions precedent and should have been alleged in the complaint and proved upon the trial. Rosenstock v. City of New York, 97 App. Div. 337; affd., 181 N. Y. 550.
Judgment should be reversed and complaint dismissed, with leave to plaintiff to apply to the compensation commission for such relief as the commission may deem him entitled to.
Judgment affirmed, with costs.