First Department, May, 1910. [Vol. 138. value of the remaining strips, $7,699.08. The other testified that the value of the plot, in his opinion, was $24,454; the damages, $16,497, and the value of the remaining strips, $7,957. Taking the mean of those two estimates as the commissioners appear to have done when they estimated the damage, we find the witnesses' estimate of the value of the remaining strips to be $7,828.04. Upon that basis the assessment should have been $3,914.02, while as made it was $6,917.02. We should call attention also to the fact that the ten-foot strip upon the north side of the street covered with thirty feet of rock has been assessed for benefit $1,907.52. In Matter of Mayor, Lafayette Avenue (103 App. Div. 496) this court, Mr. Justice MCLAUGHLIN writing the opinion, said: "It is true there is in the report a statement to the effect that the commissioners have in no case exceeded in their assessment for benefit one-half of the value of the land assessed as valued by them, and if there were nothing else in their report or the proceedings had before them to show to the contrary, this statement would be conclusive, under the recent decision in Matter of Whitlock Ave. (178 N. Y. 421). Such statement, however, is not conclusive when the evidence presented shows that the same has been inadvertently or erroneously made, and that is what here appears. The record shows that Rollins, at the time his land was taken, was the owner of a tract of unimproved land (called salt meadow land), which contained six and seven-tenths acres, one and one-half acres of which were taken by the commissioners, and for which they awarded $3,000, viz., $2,000 an acre. The part taken, so far as appears, was of the same character as the balance of the land, which at the same rate would have been worth $10,400. It was assessed for benefits $7,778.09, which is more than one-half of its value, and in excess of what the charter allows. Therefore, in view of such facts, I think the court properly ordered the report back for correction." In Matter of City of New York (Avenue D) (122 App. Div. 416) Mr. Justice WOODWARD, in considering a case where land had been taken, leaving a strip on each side, and referring to section 980 of the charter, said: "It is claimed by the appellants that the commissioners violated this provision of the charter by imposing an assessment on the lands taken greater than one-half their value. If the lands not taken are to be figured at the same rate per square App. Div.] First Department, May, 1910. * * foot as fixed by the award for the land actually taken for the street extension, then the contention of the appellants is right. * The respondent contends that there is no warrant in law for the contention that the commissioners must place the same value upon the lands abutting Avenue D as upon that part of the tract taken for opening that street. On the other hand it is urged that the instant the title to Avenue D was transferred to the city the abutting lands took a new and additional value, which the commissioners were justified in considering in fixing the value of the lands to be assessed. It is quite manifest that the commissioners must have pursued this course to justify the assessment actually made. * The section above quoted limiting an assessment to not more than one-half the value of such house, lot, improved or unimproved land, as valued by them,' is silent as to the method which the commissioners should employ in fixing the valuation—whether as determined before or after the street extension had been made. * * * We, therefore, conclude that commissioners in determining the value of the parcels untaken must determine and fix that value on what the parcels are worth with the street extension made, and the title to the land within the street lines vested in the city of New York;" and held that, the commissioners having been lawfully justified in pursuing this method and having certified that they had followed the directions of the statute and limited their assessment as required, the report should be confirmed. The Court of Appeals (192 N. Y. 575) while it affirmed the order in said matter, said: "The question whether the commissioners exceeded the limitation prescribed * * * is not passed upon because not presented by the record. The appellant should have moved to send the report back to the commissioners with instructions that they specify whether their valuation was made as of the date when title vested or as of the date of their report." We think the court should be advised of the date taken by the commissioner of assessment for his determination of the value, for if it was as of the date of the estimate for damages, we think the report must, upon this record, be sent back to the commissioner for readjustment of the assessment for benefit. The order appealed from should, therefore, be affirmed in so far as it confirms the award for damages and the report should be First Department, May, 1910. [Vol. 138. returned to the commissioner of assessment for further return as indicated, without costs to either party upon this appeal. INGRAHAM, P. J., MCLAUGHLIN and SCOTT, JJ., concurred. Order affirmed so far as it confirms award for damages, and report returned to commissioner for further return as indicated in opinion, without costs to either party on this appeal. Settle order on notice. ADAM Uss, as Administrator, etc., of ALEXANDER Uss, Deceased, Respondent, v. CRANE COMPANY, Appellant. First Department, May 22, 1910. Master and servant - negligence - Employers' Liability Act creates new action — pleading — motion to make complaint more definite and cer tain date of service of notice actions under statute and at common law should be separately stated. The Employers' Liability Act creates a new cause of action in favor of a servant against his master. Although but one recovery can be had for the negligence of a master causing the death of his servant, he may in a proper case be charged with liability either under the statute or at common law. Where a complaint against a master mingling a cause of action under the statute with one at common law states that the notice under the statute was duly served, the plaintiff will be required to make the complaint more definite and certain so as to state the date when the notice was served in order that the master may take advantage of the short Statute of Limitations, and will be required to state and number the causes of action separately so that the master may demur to the statutory action if barred. APPEAL by the defendant, the Crane Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 10th day of February, 1910, denying the defendant's motion to require the plaintiff to make the complaint more definite and certain. Norman S. Goetz of counsel [ William L. Cahn with him on the brief], Levertritt, Cook & Nathan, attorneys, for the appellant. Jaco Brand of counsel [Herman B. Goodstein, attorney], for the respondent. App. Div.] CLARKE, J.: First Department, May, 1910. The plaintiff sues to recover damages for the death of his decedent, caused, it is alleged, by the negligence of the defendant, his employer, on August 3, 1909. The complaint contains allegations appropriate to an action under the common law as well as to an action brought under the Employers' Liability Act. Paragraph VIII thereof is as follows: "That heretofore and prior to the commencement of this action, the plaintiff duly caused notice of the time, place and cause of said injuries and death to be given to the defendant pursuant to the statute in such case made and provided.” The defendant moved for an order requiring that the complaint be made definite and certain in the following particulars: "I. So that it shall set forth plainly either a cause of action based on the defendant's common-law liability, or one based on defendant's statutory liability. II. So that paragraph VIII of the complaint shall set forth in place of the word 'duly,' the date on which the plaintiff claims to have served notice upon the defendant of the time, place and cause of his intestate's death. III. Or if the plaintiff desires to set forth two causes of action, one based on the defendant's common-law liability and the other based on the defendant's statutory liability, that the plaintiff separately state and number said causes of action." Said motion having been denied, defendant appeals. It seems to me to be clear that the Employers' Liability Act (Laws of 1902, chap. 600; Labor Law [Consol. Laws, chap. 31; Laws of 1909, chap. 36], art. 14) gives a new cause of action. It is entitled, "An Act to extend and regulate the liability of employers to make compensation for personal injuries suffered by employees." It is provided in section 200 of the Labor Law that the employee "shall have the same right of compensation and remedies against the employer as if the employee had not been an employee." Again, in section 201, it is provided, "no action for recovery of compensation for injury or death under this article shall be maintained unless notice * * is given * ** and the action is commenced within one year * "Again, in section 202, "an employee * shall not be entitled under this article to any right of compensation or remedy against the employer in any case APP. DIV.-VOL. CXXXVIII. * * 17 * * First Department, May, 1910. [Vol. 138. where and in section 203 it is provided that an employer who contributes to an insurance fund may set up the fact of such contribution in "mitigation of damages recoverable by an employee under this article." The evident purpose of the entire statute is to give the servant a right of compensation entitling him to a cause of action which he did not formerly possess. In Harris v. Baltimore Machine & Elevator Works (188 N. Y. 141) GRAY, J., said: "It gave an additional cause of action, because it prescribed that a master shall be liable for the negligence of the superintendent, or the person acting as such. (Gmaehle v. Rosenberg, 178 N. Y. 147.) At common law such a liability was not recognized, unless the superintending servant was the alter ego of the master with respect to the work." That case is cited with approval and the foregoing language quoted verbatim in Guilmartin v. Solvay Process Co. (189 N. Y. 490) and Gallagher v. Newman (190 id. 444). (See, also, Kleps v. Bristol Mfg. Co., 189 N. Y. 516.) In Davis v. Broadalbin Knitting Co. (90 App. Div. 567; affd., 185 N. Y. 613) the court said: "Irrespective of whether or not an employee still retains his right to bring a common-law action for injuries against his employer, notwithstanding the Employers' Liability Act, if he chooses to bring his action under that act his proofs must establish a cause of action thereunder. He cannot plead within the precise terms of the act and then be permitted to prove, if seasonable objection be made, acts of negligence wholly outside his complaint." Chisholm v. Manhattan R. Co. (116 App. Div. 320); Curran v. Manhattan R. Co. (118 id. 347); Simpson v. Foundation Co. (132 id. 375); Bertolami v. United Engineering & Contracting Co. (Id. 804), and the many cases there reviewed, establish the proposition that a new cause of action has been given by this legislation. In Welch v. Waterbury & Co. (136 App. Div. 315) Mr. Justice WOODWARD said: "There is no such thing as a blending of a commonlaw action for negligence resulting in personal injuries and an action under the Employers' Liability Act; portions of a common-law action cannot be pieced out with the provisions of the Employers' Liability Act and produce a good and valid judgment, and that is |