Randall v. Bixby — 195 N.Y. 514

Majority

p. 514

Martin H. Randall, as Administrator of the Estate of Conrad E. Randall, Deceased, Appellant, v. George S. Bixby, as Receiver of The Holbrook, Cabot and Daly Contracting Company, Respondent.

Headnote

Bandall v. Holbrook, O. & D. Qonir. Go., 103 App. Div. 596 , affirmed.

(Argued March 1, 1909;

decided March 16, 1909.)

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered April 7, 1905, unanimously affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term in an action to recover for the death of plaintiff’s intestate alleged to have occurred through defendant’s negligence.

Benyamin Seharps, David Seharps and Henry L. Seheuerman for appellant.

Frank F. Smith for respondent.

p. 515

Judgment affirmed, with costs, on the ground that the negligence complained of was that of a fellow-servant in a detail of the work discharged by a fellow-servant. The court is of opinion that the notice under the Employers’ Liability Act was served within the time prescribed by law; no opinion.

Concur : Cullen, Oh. J., Edward T. Bartlett, Werner, Willard Bartlett, Hiscook and Chase, JJ. Gray, J., is of opinion that the notice was not served in time.