
    August Bohnhoff, Respondent, v. Henry C. Fischer, Appellant, Impleaded with William Kennedy.
    Second Department,
    March 8, 1912.
    Negligence — defective scaffold erected by general contractor—liability to employee of sub-contractor — Labor Law, section 18, construed.
    A sub-contractor, who does no act in reference to the fmmishing of materials or the construction of scaffolds, but merely sends his employees to a building where they use the scaffolds erected by the general contractor for the use of his own employees, is not liable under section 18 of the Labor Law, if the scaffold falls.
    
      It seems, that if it becomes necessary for a sub-contractor to construct scaffolds he will be charged with the duty of complying with the statute.
    A sub-contractor has the right to assume that the platforms or scaffolds which have been constructed and which are in common use when he or his servants come upon the work have been constructed so as to comply with the provisions of the statute.
    
      It seems, that whoever assumes the duty of constructing the scaffolding for the general purposes of the construction of a building must, under the statute, assume the responsibility for them materials and construction, so long as they are maintained for that purpose, and that any one lawfully at work on such building, using the scaffolds, must look to the person who furnished the materials or who had charge of the construction for any liability under the statute.
    Burr and Rich, JJ., dissented.
    Appeal by the defendant, Hemy 0. Fischer, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 6th day of April, 1911, and also from an order entered in said clerk’s office on the 7th day of April, 1911, denying the said defendant’s motion for a new trial made upon the minutes.
    
      George F. Hickey [Charles E. Thorn with him on the brief], for the appellant.
    
      Henry M. Dater [George F. Elliott and Jay S. Jones with him on the brief], for the respondent.
   Woodward, J.:

This action was originally brought against William Kennedy, the general contractor, engaged in the construction of a building at 14 Smith street in the borough of Brooklyn. Subsequently the defendant Fischer was brought into the action, and the prosecution of the case against Kennedy appears to have been dropped. The amended complaint alleges that “on or about the 9th day of June, aforesaid [1905], the plaintiff was in the employ of the defendant, Henry 0. Fischer, and engaged as an iron worker for said defendant, Henry 0. Fischer, in doing certain work on said building, as aforesaid, and without any fault on his part, but solely through the fault, carelessness and negligence of the defendant, William Kennedy, and of the defendant, Henry 0. Fischer, who was employed also in the erection, repairing or altering of said building, their agents and servants, as plaintiff was walking over and upon certain planking placed by said defendants, their agents and servants, and furnished by them, and due solely to the negligent and careless manner in which the same was laid, the plaintiff was caused to be thrown,” etc. The answer of the defendant Fischer is a general denial of the material facts, and an affirmative defense of contributory negligence on the part of the plaintiff.

It appears from the evidence that Kennedy was the general contractor in the construction of the building, and that the defendant Fischer was a sub-contractor for the construction of the ironwork. The building was near completion, for the roof was on, and the work under way at the time of the accident was the construction of a pent house, a projection above the main roof for the accommodation of the elevator' machinery. This pent house was about twelve feet above the roof, and Kennedy’s employees, who were also at work upon this part of the structure at the same time, had constructed a runway by placing two planks with one end upon the main roof and the other upon wooden horses, with two other planks running from these horses to the roof of the pent house, where Kennedy’s men were laying bricks, with mortar, while defendant Fischer’s men were placing some of the last of the ironwork. The evidence is undisputed that this runway was constructed and maintained by Kennedy or his employees, and that it was used in common by the employees of Kennedy and of Fischer, and the broad question upon this appeal is whether the defendant Fischer is to be charged with responsibility, under the provisions of section 18 of the Labor Law. (See Gen. Laws, chap. 32 [Laws of 1897, chap. 415], § 18; now Consol. Laws, chap. 31 [Laws of 1909, chap. 36], § 18, as since amd. by Laws of 1911, chap. 693.) We are admonished by the Court of Appeals that in the construction of this act we are to “endeavor to ascertain its fair and reasonable meaning, avoiding a construction which either extends or limits its provisions beyond that which was evidently intended.” (Schapp v. Bloomer, 181 N. Y. 125, 128.) We must examine the language, therefore, and determine whether a sub-contractor, doing no act in reference to the furnishing of materials or the construction of a scaffolding, but who merely sends his employees to a building to do certain work, and they make use of the structures erected by the general contractor for the use of his employees in work of a like general nature, is liable under this section of the Labor Law if such scaffolding falls and results in injury to his employees. It has been generally understood that the primary purpose of this act was to charge the master, who already owed the duty of furnishing reasonably safe materials and appliances, with the additional duty of seeing to it that the scaffolding used in the construction and repair of buildings, was properly constructed. In other words, the scaffolding was taken out of the class of implements and appliances, and placed in that of a place in which to perform the labor, extending the rule from that of reasonable care to one which shall “give proper protection to the life and limb of a person so employed or engaged.” It could not have been the intention of the Legislature to require that every sub-contractor must, at his peril, construct a scaffolding for each new group of men who should be employed in the construction of a building, where such scaffoldings already existed, and where it was in actual use for the general purposes of the construction. It does not require any one to build scaffoldings, it simply provides that “A person employing or directing another to perform labor of any kind in the erection, * * * of a house, building or structure shall not furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders or other mechanical contrivances which are unsafe, unsuitable or improper, and which are not so construced, placed and operated as to give proper protection to the life and limb of a person so employed or engaged.” (Labor Law, § 18.) The duty is placed upon the one who is called upon to furnish the scaffolding, hoists, stays, ladders, etc., to furnish the proper materials and to see to it that they are constructed in such a manner “ as to give proper protection to the life and limb of a person so employed or engaged.” Undoubtedly this language is broad enough so that if it became necessary for the sub-contractor to construct scaffolds, he would be charged with the duty of complying with this statute, but where the work is of such a character that it is being done in connection with the work of the general contractor, who has assumed the work of constructing the scaffolding, it cannot be that one who has neither furnished materials nor taken part in the construction can be held to be hable for a defect which results in an injury to his employee. The statute says he “ shall not furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding * * * which are unsafe, unsuitable or improper, and which are not so constructed, placed and operated as to give proper protection to the life and limb of a person so employed or engaged,” and he has not done any of these things. The sub-contractor, in the practical performance of his work, must be presumed to contract with reference to the usages and customs of his trade or occupation; to contract upon the basis óf the presumption that all men will do their duty toward him and all other men. Starting from this standpoint, he has a right to assume that the platforms or scaffoldings which have been constructed, and which are in common use when he or his servants come upon the work, have been constructed under the provisions of the law; that the place provided by the general contractor for the performance of the work, which now includes the proper construction of the scaffoldings, etc., complies with the degree of safety provided by law. That is, in law, the contract which the general contractor or “A person employing or directing another to perform labor,” etc., entered into with the sub-contractor or other person “employed or engaged” in such labor, and we are of the opinion that the sub-contractor owes no duty to his employees in reference to the scaffoldings which are erected and maintained by the owner or general contractor in the general work of construction. It is enough if we hold the sub-contractor liable for his own neglect in the erection of these scaffoldings, etc., where he is called upon to construct them in the fulfillment of his contract. There is no presumption that the sub-contractor was obliged to construct a scaffolding in this particular case. It is far more likely that he made his contract in the knowledge of the fact that the general contractor, in the laying of the brick walls, etc., would construct the necessary scaffolding, and that the ironwork would follow this up and be done in the place furnished by the general contractor for the performance of the work of the sub-contractor. If this was the case, then the general contractor owed the duty to the sub-contractor and his servants to furnish a proper place for the performance of this work, and a failure on the part of the general contractor to meet the requirements of the statute was not negligence on the part of the sub-contractor, and the case was sent to the jury upon an erroneous theory. This was the view of the law taken by this court in the case of Quigley v. Thatcher (144 App. Div. 710), where a recovery against the general contractor by an employee of a sub-contractor was sustained, and although the exact question here presented was not determined, we see no reason to hold the sub-contractor liable as a joint feasor where he has not furnished or erected a scaffolding, and where the injury complained of is the result of the act of the general contractor in not furnishing a proper place, under the statute, for the performance of the labor assigned to the servant of the sub-contractor.

In Dougherty v. Weeks & Son (126 App. Div. 786, 789) the court say: “ While evidence was excluded when first offered to prove that there was a custom by which the general contractor was to furnish ladders, no proof of custom is necessary to show that when a contractor is engaged in erecting a building and has put up the only means of access to the different floors and employs a sub-contractor to do some particular work in that building, like plumbing, that he invites him to make use of the appliances which he has furnished necessary to get to the place to do his work.” (See Duffy v. Williams, 71 App. Div. 110.)

It seems clear to us that whoever assumes the duty of constructing the scaffolding for the general purposes of the construction of the building must, under the statute, assume the responsibility for their materials and construction, so long as they are maintained for that purpose, and that any one lawfully at work in such construction must look to the person who furnished the materials or who had charge of the construction for any liability under the act. Certainly one who did not furnish materials, or have anything to do with the construction, cannot be held to answer for the conduct of one who did these things, so long as the latter maintains such structures and permits of their use under an expressed or implied invitation to do so.

The judgment and order appealed from should be reversed.

Jems, P. J., and Hirschberg, J., concurred; Burr and Rich, JJ., dissented on the ground that if a master permits his employee to make use of a scaffold constructed by another, it is his duty to see to it that it is safe for the purpose for which he permits it to be used.

Judgment and order reversed and new trial granted, costs to abide the event.  