Hoag v. Ulster & Delaware Railroad , 164 N.Y.S. 529 ( 1917 )

Kellogg, P. J. (dissenting):

It is a mistake to assume that this action is brought under the Federal Employers’ Liability Act (35 U. S. Stat. at Large, 65, chap. 149, as amd. by 36 id. 291, chap. 143). The summons was served without a complaint. Attached to the summons was a notice that the plaintiff would take judgment for $35,000 damages on account of the defendant’s negligence under the Federal Employers’ Liability Act.

There is no place for such a notice in a negligence action under sections 419 and 420 of the Code of Civil Procedure.

However, if the notice was properly given it does not prevent the plaintiff from serving a complaint for any other cause of action. (Sharp v. Clapp, 15 App. Div. 445; Johnstone v. Weibel, 131 id. 166.)

It does not appear that the defendant is a self-insurer, or has obtained insurance for its employees under the Workmen’s Compensation Law of this State. Apparently, therefore, the plaintiff may, if the case does not fall within the Federal Employers’ Liability Act, elect under section 52 of the Workmen’s Compensation Law to claim damages, and in this action have all the benefits given her by that section.

The plaintiff, therefore, is at liberty to frame her complaint according to the facts as she may ascertain them to be. She has lost her husband; she is not sure of the circumstances causing his death, but has reason to believe that the investigation sought will enable her to frame a complaint alleging a cause of action therefor. We cannot try the merits upon this application. The practice is very liberal, and, under the circumstances, it is reasonable that she should have an opportunity to obtain what information she can from the defendant as to the circumstances causing the death. I, therefore, favor an affirmance of the order.

Woodward, J., concurred.

Order appealed from affirmed in respect of the orders to the conductors and engineers of the colliding engines, and in other respects reversed, without costs to either party.