
    George H. Scott, Respondent, v. George T. Kelly, Appellant.
    
      Negligence — defective scaffold.
    
    Appeal by the defendant from a judgment of the County Court of Westchester county, entered in the office of the clerk of said county on the 8th day of February, 1912, in favor of the plaintiff, and from an order entered in said clerk’s office on the 13th day of February, 1912, denying a motion for a new trial.
    Judgment and order of the County Court of Westchester county affirmed, with costs. No opinion. Hirschberg, Woodward and Rich, ,JJ., concurred; Burr, J., read for reversal, with whom Carr, J., concurred.
   Burr, J. (dissenting):

I dissent. Plaintiff was not injured by a defective scaffold. If the plank which was laid on the brick piers sixteen inches high, which was placed on the regular scaffold, could itself be called a scaffold, and if we should concede that it was a defective scaffold, plaintiff was not injured thereby. Defendant was removing this improper structure when one of plaintiff’s fellow-servants carelessly dropped a brick and injured him. This being a common-law action for such negligence, defendant is not liable. _  