LAMBERT, J.:

The plaintiff brings this action to recover damages for personal injuries alleged to have been sustained through the negligence of the defendant. The defendant was engaged in the construction of a factory for the Knickerbocker Chocolate Company on Thirty-first street, borough of Manhattan. On the 16th day of December, 1903, the plaintiff was employed by the defendant, and directed to report to the foreman at the chocolate company's building. He went to work upon a scaffolding, aiding in putting up a thin oak covering known as facia. While thus engaged he was directed by the foreman to go to another part of the scaffolding to aid two men, Law and Johnson, who were taking down some of the work which had been improperly placed. While thus employed, and just as a section of the facia, weighing about 100 pounds, was released from the ceiling, a plank of the scaffolding on which the plaintiff and his two fellow-employees were standing, broke. This precipitated the plaintiff to the floor, about four and one-half feet below, and he sustained the injuries for which he is seeking recovery here. It would seem that under the provisions of the Labor Law (Laws of 1897, chap. 415, §§ 18, 19, as amd. by Laws of 1899, chap. 192), as construed in Stewart v. Ferguson ( 164 N.Y. 553) and in Schapp v. Bloomer (181 id. 125), the negligence of the defendant was shown sufficiently to justify the verdict, and the evidence in the case as to the detail of the work, by means of which it was attempted to be established that the defendant's foreman had been guilty of negligence in the construction of the scaffolding, was at least not necessary.

The theory of the plaintiff, however, was that his case came within the provisions of the Employers' Liability Act, and in support of this cause of action he introduced in evidence, over the objection and exception of the defendant, a copy of a notice served upon the defendant, and the principal question involved in this appeal is the sufficiency of such notice. The statute (Laws of 1902, chap. 600, § 2) provides that no action for the recovery of damages for personal injuries shall be maintained unless "notice of the time, place and cause of the injury is given to the employer within one hundred and twenty days * * * after the occurrence of the accident causing the injury or death." This notice is required to be in writing, and the notice introduced in evidence and found in the record does not state the cause of the injury within the letter or spirit of the statute. The notice reads as follows: "Please take notice that I have a claim against you for personal injuries sustained by me on the 18th day of December, 1903, while in your employ on a building situated on West 31st Street, between 9th and 10th Avenues, in the Borough of Manhattan, New York City, through your negligence in failing to furnish me with a safe, proper and suitable place to perform the work which I was engaged to do by you; in failing to furnish me with proper and safe appliances with which to do the work which I was engaged to do by you and in failing to furnish me with competent fellow-employees."

Assuming that the cause of the injury might be stated in its legal effect, the only suggestions of negligence in this notice are such as are involved in a common-law action of negligence, and in an action at common law there is no occasion for giving any notice whatever, except in those actions against municipal corporations where the statute has made such notice necessary as a condition precedent. The notice does not, therefore, in any view we may take of it, give the employer any information of the cause of the injury which would impose liability under the Employers' Liability Act, and it has been held by this court that the notice, "in order to permit the bringing of an action under the statute, should be sufficient to apprise him that liability is claimed because of the statute and under its provisions." ( Chisholm v. Manhattan Railway Co., 116 App. Div. 320, 324.) In other words, the notice should have informed the defendant of the claim of negligence on the part of its foreman or superintendent, if it was intended to hold the master liable for such negligence, and the giving notice of alleged negligence under the common law does not fulfill the purposes of the Legislature in requiring notice to the employer where it is intended to hold him to a larger liability. The authorities which plaintiff cites, and which undoubtedly justify the contention that statutes requiring notice of an accident resulting in personal injuries are satisfied with substantial compliance, are such as relate to municipal corporations, where the common-law rights of the individual are infringed or limited. In no case, where the rights of the individual are enlarged beyond the common-law right, has it ever been held that the statute is open to liberal construction or substantial compliance, so far as we have been able to discover, and this court is thoroughly committed to the rule which we have pointed out above.

This being true, it was clearly error to admit the notice over the defendant's objection, and the error was intensified by the charge of the court. It is true that there was no objection to the charge, but the defendant had raised the question of liability under the Employers' Liability Act by the objection and exception to the admission of the notice in evidence, and this is sufficient to protect its interests upon this appeal. The notice in evidence, in connection with the charge of the court that the negligence of defendant's foreman could be imputed to the defendant, could not have failed to prejudice the case in the minds of the jurors, and the judgment, because based upon an erroneous theory, which the defendant sought to obviate, should be reversed. There are other questions involved in this appeal, but as a new trial must be had, it is not necessary to consider them here, for there is no reason to anticipate that they will appear upon a new trial.

The judgment and order appealed from should be reversed and a new trial granted, with costs to the appellant to abide the event.

PATTERSON, P.J., concurred.