Second Department, March, 1910.

[Vol. 137. tugs on its way from Jersey City to Brooklyn a collision occurred between that tow and another tow in charge of the New York, New Haven and Hartford Railroad Company. As a result of this collision Thomas F. Carlin lost his life. The plaintiff is his widow and administratrix. She has brought this action against her husband's employer and the railroad company, charging that the collision was due to the negligence of both of them. On the trial of the action she sought to charge the New York Dock Company with negligence on the part of the captain of its tug which was towing the float. This negligence, according to the plaintiff's claim, arose in the act of the tug captain in continuing his course without stopping soon enough when he saw the other tow approaching.

The learned trial court dismissed the complaint against the dock company on the ground that the decedent, the captain of the float and the tug captain were fellow-servants, and that hence the plaintiff could not recover against the common master. As it appeared on the trial, the captain of the tug was, at the time of the accident, in the wheelhouse of the tug, engaged himself in the actual navigation of the tow. The question arises whether, under such circumstances, he was the alter ego of the master or a fellow-servant with the other servants of the common master engaged in the work of the tow. There are several authorities to aid in the answer to this question. Outside this State, the question whether the master of a ship is a fellow-servant of the members of the crew has been the subject of not a few decisions. In the case of The City of Alexandria (17 Fed. Rep. 390) it was held that all the officers and the members of the crew of a vessel on a voyage, whatever be their relative ranks, are fellow-servants in one enterprise, and no liability can be imposed upon the owner for the negligence of one as against the other. The same rule was declared in Benson v. Goodwin (147 Mass. 237). In Mathews v. Case (61 Wis. 491) the owner of a ship was held not to be liable for the negligent act of the ship's captain in steering the ship so unskillfully in the trough of the sea that it was boarded by large quantities of water, which caused an injury to one of the crew, and the ground of the decision was that the captain and the crew were fellow-servants. In this State the authorities are to the same effect. In one phase or other, the question has been twice before this court in a not very great length of

App. Div.]

Second Department, March, 1910.

time. In Larssen v. Delaware, L. & W. R. R. Co. (59 App. Div. 202) it was held that the owner of a sea-going tug was not liable to a deckhand for personal injuries caused by negligence of the captain in the management of the tug, because both captain and deckhand were fellow-servants; and the case of Hedley v. Pinkney & Sons S. S. Co. (L. R. [1892] 1 Q. B. 58), where the same doctrine was declared, was cited as one of many authorities to that effect. In Belt v. Du Bois' Sons Co. (97 App. Div. 392) a collision had taken place between a tug and a piledriver, both owned and operated by the defendant, and one of its servants engaged on the piledriver was injured through the alleged negligence of the tug captain. It was held that both the tug captain and the man on the piledriver were fellow-servants and that no liability fell upon the common employer. In Gabrielson v. Waydell (135 N. Y. 1) there is an exhaustive consideration of the question of the fellow-servantship of the captain with the crew of a vessel while on a voyage, and while the court was divided as to whether the owner was liable to a member of the crew for cruel conduct on the part of the captain as a fellow-servant, there was no division of opinion that, in the ordinary work of navigation, captain and crew were all fellow-servants. To the same effect is the authority of Geoghegan v. Atlas Steamship Co. (146 N. Y. 369).

The plaintiff seeks to avoid this common-law rule by asserting a right to maintain her action under the Employers' Liability Act (Laws of 1902, chap. 600). It is her claim that the captain of the tug was a "person in the service of the employer entrusted with and exercising superintendence whose sole or principal duty is that of superintendence," within the provisions of that statute, and that hence there is a liability on the part of the employer, the dock company, for the captain's negligence in the navigation of the tow. Unfortunately for her, the notice given by her, under the requirements of section 2 of that statute, does not bring her case within its provisions so as to present the question of the captain's "superintendence" for our decision. The notice given was as follows: "To the New York Dock Company:

"The undersigned * * * hereby notifies you, pursuant to Chapter 600 of the Laws of 1902 of the State of New York, that said Thomas F. Carlin was killed on the 24th day of March, 1903,

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[Vol. 137.

while in your employ on a float in the vicinity of Communipaw Ferry, North River, due to a collision which occurred in said vicinity of Communipaw Ferry.

"Dated BROOKLYN, N. Y., July 15, 1903.

"SARAH A. CARLIN."

That this notice is wholly insufficient as a compliance with the provisions of the statute seems beyond discussion, notwithstanding the probability that the defendant dock company had other means of acquiring all necessary information. The giving of the notice required by the statute is a condition precedent to bringing an action within its terms. (Finnigan v. New York Contracting Co., 194 N. Y. 244.)

The judgment dismissing the complaint as against the defendant The New York Dock Company, and the order denying a new trial should be affirmed on reargument, with costs.

JENKS, BURR, THOMAS and RICH, JJ., concurred.

Judgment dismissing the complaint as against the defendant The New York Dock Company, and order denying motion for a new trial affirmed on reargument, with costs.

GUSTAV H. LIEDTKE, Appellant, v. HENRY J. MEYER, Respondent. Second Department, March 31, 1910.

Landlord and tenant summary proceedings - final order should award possession-partial eviction - appeal from Justice's Court failure of County Court to order new trial on reversal - power of Appellate Division.

A final order in favor of the landlord in summary proceedings should award possession of the premises, not damages for unpaid rent.

If there be a continuing partial eviction the landlord cannot maintain summary proceedings against the tenant for non-payment of rent.

It seems, that where the County Court on reversing an order in summary proceedings made by a justice of the peace as against the evidence and law did not order a new trial before the same or another justice of the same county, the Appellate Division may modify the order of reversal, so as to direct the County Court to order a new trial.

But where the order of reversal does not purport to give judgment for the defendant on the merits, the landlord will be left to a new proceeding.

App. Div.]

Second Department, March, 1910.

APPEAL by the plaintiff, Gustav II. Liedtke, from an order of the County Court of Suffolk county, entered in the office of the clerk of said county on the 16th day of December, 1909, reversing a judgment of a justice of the peace in favor of the plaintiff.

Andrew I. Albert, for the appellant.

Ernest W. Tooker, for the respondent.

CARR, J.:

This appeal brings up for review an order of the County Court of Suffolk county which reversed a final order of a Justice's Court in summary proceedings between a landlord and tenant for the recovery of possession of certain demised premises. The proceeding was begun on a petition which alleged the tenant's failure to pay the monthly rent after a demand by the landlord. The tenant filed an answer, setting up as a defense a partial eviction by the landlord. When the proceeding came to trial the defendant testified that the premises rented to him consisted of a store, one-half of a barn of certain dimensions and accommodations, and a chicken yard with room for 200 chickens. During his absence in the city, in the latter part of 1908, the landlord entered upon the premises, removed the old barn which had stalls for four horses and a large hay loft, and covering altogether 800 square feet, and in place thereof erected a new barn with no hay loft and covering altogether only 306 square feet, and located the new barn in a place inconvenient for the tenant's use. The tenant claimed that he had no notice of any intended changes and never gave his consent thereto. The plaintiff offered no evidence to the contrary. Notwithstanding this evidence the justice made a final order in favor of the plaintiff. That is to say, we assume that he made a final order, for both counsel so refer to it, though it is not printed in the record on the appeal. The order made, whatever else its contents may be, awarded the petitioner the amount of the unpaid rent. From this order, or judgment, or whatever it was in form, the tenant appealed to the County Court. That court reversed the final order, with costs. From the order of reversal this appeal is taken.

If the order of the Justice's Court simply awarded the petitioner the amount of the unpaid rent, then it was clearly erroneous, as such

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[Vol. 137.

relief cannot be awarded in summary proceedings between a landlord and tenant. The final order, if in favor of the petitioner, should award possession of the premises and not damages for unpaid rent. If in this case it did award possession to the petitioner, then it was likewise erroneous. When there has been a partial eviction by the landlord he cannot maintain summary proceedings against the tenant for non-payment of rent while the partial eviction continues. This rule may be very technical, but it has been so long existing and so frequently applied as to be beyond any present questioning. (Sirey v. Braems, 65 App. Div. 472; People ex rel. Murphy v. Gedney, 10 Hun, 151; Hamilton v. Graybill, 19 Misc. Rep. 521; Heinrich v. Mack, 25 id. 597; Seigel v. Neary, 38 id. 297.)

The order of the Justice's Court was, therefore, against the evidence and against the law. Its reversal by the County Court was, therefore, proper. On the reversal the County Court had power to order a new trial before the same or another justice of the same county. (Code Civ. Proc. § 3063.) It did not, however, so order. Doubtless on this appeal we may modify the order of reversal in such manner as to direct the County Court to order a new trial before the same justice or another justice of the same county to be designated by the County Court. (Hartmann v. Hoffman, 76 App. Div. 449.) Inasmuch, however, as the order of reversal, as it stands, does not purport to give judgment for the defendant on the merits, it is not conclusive as to the rights of the parties. (Ellert v. Kelly, 4 E. D. Smith, 12.) The landlord, if he feels so advised, may begin a new proceeding.

The order of the County Court should be affirmed, with costs. HIRSCHBERG, P. J., BURR, THOMAS and RICH, JJ., concurred.

Order of the County Court of Suffolk county affirmed, with costs.