Lewis v. Gehlen
122 N.Y.S. 89
N.Y. App. Div.
1910
Check Treatment
Woodward, J.:

The notióe served under the supposed provisions of the Employers’ Liability Act (Laws of 1902, chap. 600) merely asserts that the plaintiff was injured “ through your negligence in failing to provide him with a reasonably safe and suitable place whereat to work, in that a plank on which he was standing broke and he was precipitated from one of the upper floors of the said building to the ground floor,” etp. It is now conceded that no plank broke; that the injury resulted from the removing of a “header” or beam used to shore, up the ends of cross beams on which the floor was laid, and which had been cut off for the purpose of enlarging a well hole or elevator shaft in a building which was in course of remodeling. The plaintiff testifies that he helped to remove this header, and that the accident occurred within an hour and a half of the time that the header was taken away. Obviously the notice served called attention only to a common-law right of action, and did not enlarge his'rights. .He is entitled to no greater consideration in asserting a. common-law right *857of action because he served a notice that he had been injured by the neglect of a common-law duty of the master, and when it appears by plaintiff's own testimony that the place was made unsafe in the' progress of the work, he himself participating in the very act which caused the accident, there is an end of his case. If the plaintiff had just come upon the work, with the header already removed, and had been directed by the foreman to go upon the projecting ends of these beams, unsupported by the header, he might be heard to say that he Was not furnished a reasonably safe place in which to perform his labors, but this was not the case; he had worked there for several months in the remodeling of this building. The header was in position when he went to work on the very day of the accident, and he himself helped to take it down in .the very work then under way, and the master certainly did not owe him such a duty of active vigilance as to come along and inspect these unsupported beams within one hour and a half of the time the plaintiff helped to remove them. This duty might have been due to a new employee coming upon the work at that time, but it was not due the plaintiff; the dangers to be anticipated were equally obvious to him as to the master, and the assurance of the working foreman that the beams ran through the wall was not an assurance on the part of the master.

The judgment and order appealed from should be affirmed.

Thomas, Bich and Carr, JJ., concurred; Hibschberg, P. J., dissented.

Judgment and order affirmed on reargument, with costs.