136 N.Y.S. 565 | N.Y. App. Div. | 1912
Plaintiff, while in defendant’s employ, was injured through being kicked by a horse belonging to defendant. When the case was called for, trial a motion was made to dismiss the complaint upon the ground that it did not state facts sufficient to constitute a cause of action. The motion was granted, and plaintiff appeals from the. judgment.
The complaint alleges that defendant, knowing of its condition, furnished to plaintiff for use in his work a horse which was dangerous, unsafe and unfit to be used or driven by reason of a large sore upon its breast, which had been there for upwards of three weeks, and which was in a lacerated and raw condition; that the collar of the harness rested upon and rubbed and chafed this sore spot, causing the horse great pain and suffering and making it restless, nervous, vicious and liable to kick. The complaint also alleges the service of a notice under those sections of the Labor Law relating to employers’ liability (Consol. Laws, chap. 31 [Laws of 1909, chap. 36], § 200 et seq., as amd. by Laws of 1910, chap. 352). Whether a horse furnished to be used in connection with a wagon, both being employed in carrying on the master’s work, is included in the term “ plant ” as used in the amended act, we need not now determine. The case of McGovern v. Fitzpatrick (148 App. Div. 34), relied upon by the respondent, is not in point, for there the cause of action arose before the adoption of the amendment referred to. If the complaint stated a cause of action either at common law or under the statute it was error to dismiss the same. (Mulligan v. Erie R. R. Co., 99 App. Div. 499; Acardo v. N. Y. Contracting & Trucking Co., 116 id. 193; Uss v. Crane Co., 138 id. 256.) If this complaint does state or attempt to state two independent causes of action, one at common law and the other under the statute, and it was necessary to separately state and number these (Uss v. Crane Co., supra ; Acardo v. N. Y. Contracting & Trucking Co., supra), no motion was made for that purpose. We think that the complaint did state a cause of action, at least at common law. Respondent
The judgment of the County Court of Westchester county should be reversed and a new trial ordered, costs to abide the event.
Hirschberg, Thomas, Woodward and Rich, JJ., concurred.
Judgment of the County Court of Westchester county reversed ■and new trial ordered, costs to abide the event.