Carr, J.:
Plaintiff has recovered a judgment against the defendant for the-. ' sum of $2,750 for personal injuries .alleged to have been caused through the negligence of the defendant, which at the time of the accident was plaintiff’s employer. The injuries which the plaintiff suffered were quite severe, and if the judgment is otherwise, justified,, the damages are not excessive, and no point is made in appellant’s brief in this particular.
Defendant ' operated á sawmill, and plaintiff was one of its employees. He testified' that he was ordered by defendant’s foreman to take some boards from a pile of lumber and saw them into pieces for the making of a window sash. His testimony is that *901the foremán ordered him to use a ripsaw, which was located on the first floor of the .sawmill. While he was pushing the board against the ripsaw a knot on the under side of the board, about a foot from the end nearer to him, came in contact with the teeth of the saw, and this caused the board to jump up, which in turn loosened his hold on the board, and caused his hand to come in contact with the unprotected teeth of the saw, dangerously mutilating his thumb and several fingers. lie gave notice to the employer, under the provisions of the Employers’ Liability Act (Laws of 1902, chap. 600 ; revised in Labor Law [Consol. Laws, chap. 31; Laws of 1909, chap. 36], § 200 et seq.), specifying the ground of negligence on the part of the employer, that the machine in question was not guarded as provided by the former Labor Law. (See Gen. Laws, chap. 32 [Laws of 1897, chap. 415], § 81, as amd. by Laws of 1906, chap. 366.) There was no guard on this ripsaw, and in that respect the statute seems to have been violated. The chief controversy between the parties to this appeal arises upon the question whether or not the plaintiff can maintain this action under the provisions of the Employers’ Liability Act. The reason for this contention arises 'thus : The trial court submitted to the jury, as a question' of fact, the. question of assumption of risk on tile part of the plaintiff,, as provided by section 3 of the Employers’ Liability Act (Labor Law, § 202). The appellant contends that the liability of the defendant, if any, was complete at common law, and, therefore, the plaintiff was not entitled to maintain this action under thé statute last cited, and if not so entitled, section 3 thereof (Labor Law, § 202), relating to assumption of risk, did not apply. While the briefs of the respective counsel are quite elaborate, and contain a large citation of authorities, there is no case in this State heretofore decided which sustains the claim of the appellant that this action was not maintainable under the Employers’ Liability Act. In fact, so far as the reported decisions go, the question does not seem to have arisen heretofore in this State on any similar state of facts. The plaintiff’s contention is, that as the former Labor Law required the machinery in question to be guarded, the failure to so guard the machinery constituted a defect in the machinery so far as the safety of the employee was concerned, and that, therefore, the action fell plainly within the provisions of subdivision 1 of section 1 of *902the Employers’ Liability Act (Labor Law, § 200, subd., 1), which reads as follows : “Section 1. Where, after this act takes effect,, personal. injury .is caused to an employee, who is himself in the exercise of due care and diligence at the time: 1. By reason of any defect in the condition of the ways, works, or machinery'connected with or used in the business of the employer, which arose from or had not been discovered or remedied owing to the' negligence- of the employer, or of any person- in. the service of the employer.and entrusted by liim with the duty of seeing that the ways, works or machinery were in proper condition; * * * the employee * * * shall have the same right of compensation .and remedies against the’employer as if the employee had not been an employee of nor in the service of the employer nor engaged in his work.”
In support of this contention. several English cases are cited (Tate v. Latham & Son, L. R. [1897] 1 Q. B. Div. 502; Morgan v. Hutchins, 59 L. J. [N. S.] Q. B. Div. 197), and independently' of them, it is my judgment that the contention of the plaintiff is well based. If the action is maintainable under ■ this section of the' statute, then the other section of this statute applies to it, and the act of the trial justice in submitting the question of assumption of risk to the jury was proper. Defendant contends, however, that inasmuch as plaintiff might have maintained the action had the Employers’ Liability Act never been enacted, the action must have been deemed to have been brought at common' law, and not under the Employers’ Liability Act. To support this contention a number of authorities are cited, many of them in- this court. (Davenport v. Oceanic Amusement Co., 132 App. Div. 368; Simpson v. Foundation Co., Id. 375; McDonnell v. Robinson Co., 136 id. 598; Beauregard v. N. Y. Tunnel Co., Id. 834; Curran v. Manhattan R. Co., 118 id. 347.)
I have examined carefully all of these cases, and not one of them covers the proposition for which they are cited as authorities. In each one of them the cause of action was not covered by the language of the statute in question, and was primarily and exclusively one at common law.. The language of the statute in question covers the cause of action pleaded in this action and' proved at the trial. That such a cause of action did exist at common law is not-exclusive of plaintiff’s right to maintain it under the statute. While the *903statute in question created liabilities that did not exist at common law, it also, by section 3 (Labor Law, § 202), gave to a plaintiff who maintained an action under its terms - certain advantages or privileges not granted to those who did not avail themselves of its terms. By giving the notice required by section 2 of the act (Labor Law, § 201), he intended to so inform the defendant that he' proposed to avail himself of all the privileges granted by the apt. To adopt the construction asserted by the appellant, the language of subdivision 1 of section 1 of the statute (Labor Law, § 200, subd. 1), relating to the negligence of an employer, would have to be eliminated from the statute. I can see no reasonable basis on which such process of elimination could be made to rest.
I recommend, therefore, affirmance of the judgment and order, with costs.
Present — Hirschberg, P. J., Woodward, Jerks, Thomas and Carr, JJ.
Judgment and order unanimously affirmed, with costs.