Opinion
April 1, 1932.
Appeal from the City Court, county of New York.
C. B. Dunham, for the appellants.
Lucian V. Axtell, for the respondent.
The complaint alleged:
"Sixth. That on or about the 7th day of June, 1928, at about 1:15 A.M., while the said Steamship Willkeno was at the dock at the port of Everett, Washington; while in the performance of his duties; while exercising due care and caution, he was suddenly set upon by members of the crew of the aforementioned steamship, assaulted, beaten and stabbed in the abdomen and other parts of his body, whereby he was caused to sustain serious, severe and upon information and belief permanent injuries, which condition has since developed into tuberculosis. * * *
"Eighth. That the said assault, beating, stabbing and injuries were due to the negligence of these defendants, their officers and employees in failing to provide the plaintiff with a safe and proper place in which to work; in failing to provide the said Steamship Willkeno with a proper and competent and sufficient crew; in failing to exercise proper discipline on board the said vessel; in failing to take the necessary precautions to prevent the said attack; in failing to take the necessary steps to protect the plaintiff, and by reason of the failure to provide a proper, sufficient and competent crew, the said vessel was rendered unseaworthy. That although the nature, character and disposition of the said crew members were known to the defendants; their agents, officers and employees, they were permitted to be at large. (Italics ours.) * * *
"Tenth. That under the general maritime law, plaintiff is entitled to his maintenance and care and hospital bills for a reasonable period of his disability, and to his wages to the end of the voyage, in the further sum of $5,000.00.
"Wherefore, plaintiff demands judgment against the defendants in the sum of $20,000.00 on the first cause of action, and in the alternative, in case the plaintiff does not recover on the first cause of action, in the sum of $5,000.00 on the second cause of action, together with the costs and disbursements of this action."
We think the action against these defendants is not based on the theory that they are responsible for the torts of their seamen upon the principle of respondeat superior, but upon the ground that in the particular case they were negligent in the employment of the crew and in other respects. In other words, the gravamen of the complaint is negligence and not assault and battery. The City Court has no jurisdiction of such an action where a judgment in excess of $3,000 is demanded. (New York City Court Act, §§ 16, 17.)
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, with leave to plaintiff to amend within six days after service of order entered hereon on payment of said costs and disbursements.
All concur; present, LYDON, LEVY and FRANKENTHALER, JJ.