Spector v. Feldman

Full title: WILLIAM SPECTOR, Respondent, v . ESTHER FELDMAN and Others, Appellants

Court: Appellate Division of the Supreme Court of New York, First Department

Date published: Apr 1, 1913

156 App. Div. 892 (N.Y. App. Div. 1913)

140 N.Y.S. 979

Opinion

April, 1913.

Appeal from a judgment of the Supreme Court, entered in the New York county clerk's office on the 11th day of June, 1912, upon a verdict and from an order entered on the same day denying a motion for a new trial.

Present — Ingraham, P.J., McLaughlin, Laughlin, Scott and Dowling, JJ. McLaughlin and Dowling, JJ., dissented.

PER CURIAM:

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.

McLAUGHLIN, J. (dissenting):

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.

DOWLING, J. (dissenting):

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.