invitation to use the floor joist as such scaffolding, and the error of the court, in refusing to charge as requested, demands the reversal of the judgment and order as to him.

The judgment and order should be affirmed as to defendant Russell, and as to defendant Northrop should be reversed.

All concurred.

4. HEIGHT AS DETERMINING FACTOR

The provisions of section 18 of the Labor Law forbid the furnishing of unsafe scaffolding "in the erection, repairing, altering or painting of a house, building or structure." In the following decision rendered by the Court of Appeals it was held that "two horses about three and one-half feet high with two planks laid thereon" constituted a scaffold. While distinguishing this case from that of Schaap v. Bloomer, discussed at length in the opinion reported, there is an intimation in the separate, concurring opinion of MeLaughlin, J., that the statement in the latter case as to what constitutes a scaffold has been overruled by subsequent decisions. The opinion, and the concurring memorandum. follows:

STORRIER V. MOSIER & SUMMERS, 221 N. Y. 237 (July 11, 1917). CUDDEBACK, J. The action is brought by the plaintiff to recover damages for personal injuries, occasioned, as he charges, by the negligence of the defendant.

The plaintiff was a plasterer employed by the defendant in the construction of a building. The plasterers had finished with one of the rooms in the building, and at the time of the accident the plaintiff with his son, who is also a plasterer, was engaged in filling up the holes left in the walls for the plumbers and electricians to do their work. Some of the holes were near the ceiling of the room, and to reach them it was necessary to have a scaffold, platform or other similar structure for the plasterers to stand upon. Accordingly, the defendant's foreman furnished and placed in position two wooden horses about three and one-half feet high with two planks laid thereon. We must assume that the plaintiff took no part in placing the horses and planks. The plaintiff and his son got upon the structure thus provided and went to work. The son finished work first and he jumped to the floor. In doing so, he in some way overthrew the scaffold and the plaintiff fell, striking his shoulder and so received injuries for which he has recovered in this action. The accident happened June 12, 1912, and the action was brought under section 18 of the Labor Law, which provides, in substance, that a person employing another to perform labor in erecting or repairing a building, shall not furnish him with unsafe scaffolding.

The defendant, the appellant, argues that the structure which fell was not a scaffold within the meaning of section 18 of the Labor Law, and that whether it was or not is the only question in the case.

The plaintiff argues not only that the case is within the Labor Law, but also that the judgment can be sustained under the Employers' Liability Act which requires a safe place to work, or under the common-law liability of the defendant. Whether it can or not, in the view I take of the case is unimportant, because I have reached the conclusion that the structure was a scaffold.

The defendant in support of the argument that the structure was not a scaffold, cites Williams v, First National Bank of Utica (118 App. Div. 555, 559) and Schapp v. Bloomer (181 N. Y. 125, 127). In Williams v. First National Bank the plaintiff was injured while putting a casing on a window frame. He was standing at the time on a plank, resting on two wooden horses about eight or ten feet above the floor. The plank broke, because of some defect therein. The Appellate Division held that the structure was not a scaffold within the meaning of section 18 of the Labor Law. But the distinguishing feature of that case is that the plank and horses were put in place by the plaintiff and his co-workers, and if the plank that broke was defective, there were other planks upon the premises which could have been used by the workmen.

Schapp v. Bloomer (supra) was a case where the plaintiff was hanging certain shafting from the ceiling of a factory building, and he stood upon planks resting partly on wooden horses and partly on large rolls of paper. This structure fell to the floor and the plaintiff was injured. There is some language in the opinion of the court which supports the plaintiff's theory in the case under consideration; but the main thing decided was that the statute imposes liability only when the work is to be done "in the erection, repairing, altering or painting of a house, building or structure." It was held that the statute limits the scaffolds, for a defect in which the master is liable, to those constructed "in the erection, repairing, altering or painting of a house, building or structure," and it was further held that the work of attaching shafting in the factory was not within the limitation of the statute.

I do not think the case falls within the principle of either of these decisions, but rather is controlled by the decision of this court in Caddy v. Interborough Rapid Transit Co. (195 N. Y. 415, 423). Judge WERNER in that case speaks of the impossibility of defining the word scaffold, and continues: "The inherent difficulties of the subject are such as to finally compel us to work out each ease upon its own peculiar facts in the light of the manifest purpose of the legislature to secure greater protection to the employee, and to impose upon the employer directly a personal obligation which under the common law he had the right to delegate to competent employees." In the Caddy case the structure defined as a scaffold consisted of "painters horses" constructed like a ladder with rungs about twelve inches apart upon which were placed planks about eight feet above the floor.

Judge WERNER in his opinion in the Caddy case cites many Appellate Division decisions which have given the language of the statute the broad interpretation contended for here, and go far to sustain the judgment appealed from. Counsel for the appellant contends that the height of the structure above the floor, which was only three feet and six inches, indicates that it was not a scaffold within the meaning of the statute. Clearly, the

height of the structure, while perhaps an important thing to consider, does not finally define its character. In Holsapple v. International Paper Co. (152 App. Div. 606) the plaintiff was painting a steel tube or penstock which rested on brick piers about ten feet apart. He was standing on a plank which he placed as directed by the defendant's foreman on these piers about four and a half feet above the floor, and which broke under him from some defect. This plank was held at the Appellate Division to be a scaffold within the provisions of the Labor Law. The judgment in the Holsapple case was affirmed on a subsequent appeal by this court (161 App. Div. 894; 216 N. Y. 746) upon the express ground that the plank was a scaffold.

The defendant makes no argument, except that the structure was not a scaffold, and it is not necessary to consider any other question. There was evidence from which the jury could have found that the wooden horses which supported the planks, on which the plaintiff stood, were unsafe.

I recommend that the judgment appealed from be affirmed, with costs. MCLAUGHLIN, J. (concurring). The appellant relies chiefly upon Schapp v. Bloomer (181 N. Y. 125) and Williams v. First National Bank of Utica (118 App. Div. 555). The rule there laid down as to what constitutes a "scaffold" within section 18 of the Labor Law, if not in effect overruled, certainly has not been adopted or applied by subsequent decisions of this court. (Caddy v. Interborough Rapid Transit Co., 195 N. Y. 415; Grady v. National Conduit & Cable Co., 216 N. Y. 694; Holsapple v. International Paper Co., 216 N. Y. 746).

I, therefore, concur, on the authority of the latter cases, in the opinion of Judge CUDDEBACK that the judgment should be affirmed.

5. STAGING ABOUT LOCOMOTIVE

A locomotive which is being repaired has been held to be a "structure," and a staging erected in the course of the work about it has, likewise, been held to be "scaffolding."

LOESCH V. LONG ISLAND R. Co., 165 App. Div. 753 (Jan. 29, 1915), abstract.

Defendant was overhauling a locomotive in its shop. The locomotive was stripped and the flue was being repaired. Nothing remained but the boiler and shell. Those parts were eight feet wide at the base and about twelve feet high. A staging of planks upon horses five feet high was erected around it. This staging was necessary to the accomplishment of the work. In building one or two sections of the staging defective material was used therein, consisting of warped boards and unsteady and insecure horses. Plaintiff's decedent was engaged in reaming a boiler. As he was operating the machine, the machine shook him. While he was shaking he tried to move his hands, stepped

back on the end of the outer plank, which tilted, and he fell off backwards. Reversing a judgment for the defendant the court held that the case should have been submitted to the jury to determine whether the scaffolding was unsafe, unsuitable or improper.

6. DEFECTIVE ROPE SUSPENDING

A judgment for the death of the plaintiff's intestate has been upheld under section 18, based upon a complaint of "defective" ropes by which a scaffold was suspended. This was done even though defendants offered evidence that the rope was comparatively new and in good condition. Plaintiff had secured judgment for $5,000 in the Supreme Court. The Appellate Division sustained the same, saying:

SUMMO V. SNARE & TRIEST CO., 166 App. Div. 425 (March 5, 1915), in part.

The accident happened on one of the towers of the Pelham Bay bridge, which was erected under a contract between the city of New York and the Snare & Triest Company. The decedent had been at work, on the day before the accident, cleaning spots of cement from the masonry surface of the tower. An ordinary painter's ladder, with boards over the rungs, was used as a scaffold. The decedent and a helper stood upon these boards. The scaffold was suspended along the side of the tower by a rope looped over its top. It was lowered to the ground at the end of the day's work. Early in the morning of the accident, the decedent and his helper took their places upon the scaffold, and other workmen began to hoist it up into place. At times one end of the scaffold would go up higher than the other during the hoisting process. But, according to the plaintiff's witnesses, the scaffold had reached its proper place and was entirely level when the accident happened. The plaintiff produced several eye-witnesses, among them DeMelia and Erdrono. These witnesses describe the whole occurrence. According to their story, the suspending rope broke, the decedent fell from the scaffold and the scaffold in its fall struck the decedent as he lay upon the ground. There is proof by a plaintiff's witness, Farrara, that the rope was in bad condition on the day prior to the accident, and that notice of that fact was given to Hollan, the foreman on the job. The defendants' contention is that the rope was comparatively new and in good condition; that its break was due to the alleged fact that the decedent had accidentally cut it on the day before the accident, and that when the scaffold was being hoisted into place the men who were hoisting indulged in skylarking to frighten the decedent's helper, a young "greenhorn" Italian, by hoisting the scaffold ends irregularly, and that in so doing they allowed the rope to chafe against an iron bracket at the top of the tower and so to sever the strands of the rope. The plaintiff's witnesses denied the skylarking. The defendant produced two eye-witnesses, Schilling and Kane. Both of these witnesses testified that there was skylarking during the raising of the scaffold. There was evidence for the jury

that the rope was in a bad condition, and that the foreman, Hollan, hađ notice of it, which he denied. Hollan was not present at the time of the accident.

There was a case for the jury under section 18 of the Labor Law (Consol. Laws, chap. 31 [Laws of 1909, chap. 36], as amd. by Laws of 1911, chap. 693), and I do not recommend any interference with the verdict. In the complaint it was alleged that the rope "was defective and was old and worn out." The appellants contend that, inasmuch as their proofs show that the rope was not old," but compartively new, the verdict and judgment are not secundum allegata. But I think the word "defective" covers the situation sufficiently.

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7. ERECTION BY PERSON INJURED

Erection of a scaffold by a workman who is afterward injured, due to the defective method of construction, does not bar the application of section 18. The duty placed upon employers by the statute to provide safe scaffolds is absolute and cannot be delegated. These points are made by the Appellate Division in the opinion following, which holds that a structure consisting of a ladder resting upon a plank which was itself laid across two stepladders, constitutes a scaffold.

FELDMAN V. MACKEY Co., 174 App. Div. 848 (Nov. 10, 1916). CARR, J.: The plaintiff, a journeyman painter, employed by the defendant, was injured while at work painting a wall on the top floor of the Biltmore Hotel building, then under construction. He was working in the hallway. A structure had been rigged for his use against the wall which was being painted. This structure consisted of two stepladders, one longer than the other. The longer one rested on the steps of a flight of stairs, and the shorter one upon the floor of the hallway. Across the tops of these stepladders was laid a plank, and upon this plank was placed an ordinary ladder, with its top resting against the wall. The plaintiff stood on the rungs of this ladder and painted the wall. A fellow-workman stood upon the plank and held the ladder. The plank slipped out of place and the ladder fell, throwing the plaintiff to the ground. This action was brought under tire Labor Law, and notices of intention to sue were served under the employer's liability provisions of that statute (Consol. Laws, chap. 31 [Laws of 1909, chap. 36), art. 14, as amd. by Laws of 1910, chap. 352). This structure was a scaffolding" within the meaning of section 18 of the Labor Law. (Warren v. Post & McCord, 128 App. Div. 572; affd., 198 N. Y. 624.) It was put in place, however, by the plaintiff himself, together with a fellow-workman, one Stein. It had been used in the same manner the day before at another place in the building. According to the testimony of the plaintiff the defendant's foreman, Ritter, directed its removal to another place, where the accident happened. Ritter had seen it in use before its removal. He gave no directions as to its being made secure by fastenings. It was obviously dangerous in its method of construction. The duty placed upon the master by section 18 of the Labor Law (as amd. by Laws of 1911, chap. 693) was absolute and could