Spector v. Feldman

Judgment and order affirmed, with costs, on the ground that, although the notice was insufficient under the Employers’ Liability Act, yet the evidence established a sufficient cause of action at common law, and it was submitted to the jury without reference to the Employers’ Liability Act or any" liability of the defendants thereunder. Present — Ingraham, P. J., McLaughlin, Laughlin, Scott and Dowling, JJ. McLaughlin and Dowling, JJ., dissented.

I dissent on the ground that the action was tried upon the theory that it was brought under the Employers’ Liability Act,* and the notice was not sufficient to bring it within that act (Simpson v. Foundation Co., 201 N. Y. 479; Logerto v. Central Building Co., 198 id. 390), and also upon the ground that the evidence shows no negligence upon the part of the defendants.

I dissent upon the ground that the case was tried upon the theory of the Employers’ Liability Act and that the notice was insufficient under that act. Judgment and order affirmed, with costs.