
    Michael Judson, Respondent, v. The Village of Olean, Appellant.
    (Argued June 27, 1889;
    decided October 22, 1889.)
    Reported below, 40 Hun, 158.
    Appeal from judgment of the General Term of the Supreme Court in the fifth judicial department, entered upon an order made the first Tuesday of June, 1886, which affirmed a judgment in favor of plaintiff, entered upon a verdict, and affirmed a judgment denying a motion for a new trial.
    This action was brought to recover damages for alleged negligence.
    Defendant employed one Fish to work as a mason on and to superintend the construction of a chimney attached to an engine-house. Fish was authorized to employ such laborers as he chose. Among those so employed was plaintiff. In consequence of the negligent omission of another employe, who, with plaintiff, constructed a scaffolding required for the work, to sufficiently nail to the post a board sustaining the scaffold, it gave way while plaintiff was working thereon, and he fell to the ground and was injured. Held, that the negligence causing the injury was that of a co-employe, and that a refusal to nonsuit was error.
    
      Frederick W. Kruse for appellant.
    
      J. R. Jewell for respondent.
   Potter, J.,

reads for a reversal and new trial.

All concur, except Bradley and Haight, JJ., not sitting; Vann, J., concurring in result.

Judgment reversed.  