p. 501ROCKSTROW v. ASTORIA MARBLE CO.(Supreme Court, Appellate Division, Second Department.Headnote
Master, and Servant—Action for Personal Injury—Servant’s Knowledge of Defect—Right to Recover.An employe could not recover for personal injury caused by a pane of glass falling while he closed a window, where it was his duty to close the window daily, the pane had been cracked for a few weeks, and neither ho nor any one else had reported the condition to the employer or any one in authority; it not appearing that the employer or any one in authority knew of the broken pane.
iEd. Note.-—Bor cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 243, 700-709.]
Appeal from Municipal Court, Borough of Queens, First District.
Action by Augustus Rockstrow against the Astoria Marble Company. From a judgment for plaintiff, defendant appeals.
Argued before HIRSCHBERG, P. J., and WOODWARD, JENKS, GAYNOR, and MILLER, JJ.Elliott L. Perkins, for appellant.
John Hetherington, for respondent.
The plaintiff was employed as a machinist in the defendant’s shop. He also closed up the shop every night, that being Iris duty. He testified that as he was closing a window in the performance of this duty, part of a pane of glass fell out of it and cut his arm. Another witness testified that he,had noticed for a few weeks that the pane was cracked across. On this the justice gave judgment for the plaintiff for damages. There seems to be no end to such actions'. As it was the plaintiff’s duty to close the windows daily, it was for him to report to his employer, or to some one in authority, if they were in a condition dangerous to him. This he never did; and there is no
p. 502evidence that any one did, or that the employer or any one in authority knew of the broken
pane; if that makes a difference.
The judgment should be reversed.
Judgment of the Municipal Court reversed, and new trial ordered; costs to abide the event. All concur.