Luce v. New York, Chicago & St. Louis Railroad

Headnote

Former adjudication — negligence — railroads ■— dismissal of complaint in action under Federal Employers’ Liability Act to recover for death alleged to have been caused by violation of Federal Boiler Inspection Act — second action upon theory of negligence of fellow-servants and failure to promulgate rules barred.

Luce v. N. Y. C. & St. L. B. B. Co., 213 App. Div. 374 , affirmed.

Appeal from a judgment entered November 9, 1925, upon an order of the Appellate Division of the Supreme Court in the fourth judicial department, which reversed an order of Special Term denying a motion by defendant for a dismissal of the complaint and granted said motion on the ground that there is an existing final judgment of the Supreme Court, rendered on the merits determining the same cause of action between the parties herein. The complaint in the first cause of action, brought under the Federal Employers’ Liability Act, to recover for the death of plaintiff’s intestate alleged a violation of the Federal Boiler Inspection Act and plaintiff recovered a verdict, but on appeal to the Appellate Division the judgment was reversed and the complaint dismissed on the ground that there was no proof of a violation of the Boiler Inspection Act. ( 209 App. Div. 728 ; affd., 239

N. Y. 601 .) The complaint in the present action, also brought under the Federal Employers’ Liability Act, omits the allegation of a violation of the Boiler Inspection Act and seeks to recover upon the theory of negligence of fellow-servants and failure to promulgate rules. Hamilton Ward for appellant.