115 N.E. 470 | NY | 1917
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *186 The plaintiff sues to recover damages resulting from her husband's death.
In November, 1908, the defendant, a contractor, was putting up a building at the Brooklyn Navy Yard. The plaintiff's intestate, Kaufman, was in his service as an ironworker. A scaffold, held by four ropes, was suspended from the roof. Two ropes were taken from another scaffold used earlier in the day, a third was taken from a derrick, and the fourth was found by the foreman in the yard and by him given to his subordinates. After the scaffold was in place, the fourth rope, furnished by the foreman, broke, and Kaufman was thrown to the ground. There is evidence that the rope was rotten. The plaintiff claims that the scaffold was unsafe, and that the defendant under section
The provisions of the Labor Law do not help the plaintiff. They do not help her because they were enacted after the Navy Yard in Brooklyn was ceded to the United *187
States (L. 1853, ch. 355). The common law and statutes passed before the act of cession remain in force in the ceded territory until displaced by Congress (McCarthy v. Packard Co.,
We think, however, that, irrespective of the statute, a cause of action has been made out under the rule at common law. At common law the master was charged with the duty of care and diligence in providing safe, sound and suitable appliances for his workmen (Benzing v. Steinway Sons,
The trial judge did not deny that the evidence made out a cause of action at common law. He based his judgment of dismissal upon a point of pleading. He thought the complaint, though adequate by itself, had been limited and nullified by a bill of particulars. We do not share that view. The bill of particulars amplifies the charge of negligence in respect of the place of work. It makes no attempt to deal with the subject of defective appliances. As to that element of negligence the complaint stands by itself. If the bill of particulars was inadequate, the remedy was by motion either to compel the service of another or to limit the plaintiff's evidence (Code Civ. Pro. § 531; Gebhard v.Parker,
The judgment should be reversed and a new trial granted, with costs to abide the event.
CHASE, COLLIN, HOGAN, POUND, McLAUGHLIN and CRANE, JJ., concur.
Judgment reversed, etc.