
    Annie Andrews, as Administratrix, etc., of Joseph T. Andrews, Deceased, Respondent, v. H. & H. Reiners, Appellant.
    Second Department,
    April 20, 1906.
    Negligence — evidence — stockholders of business corporation cannot testify concerning personal transactions with deceased — injury by alleged fall of painter’s scaffold—failure to prove that fall was caused by defective condition. .
    A stockholder in a defendant business corporation 'cannot testify to personal transactions between himself and one deceased in an action brought by.the,, representatives of such decedent to recover damages from the corporation for; negligence, causing the death. Such stockholder is, an interested witness within the meaning of section 829 of the Code of Civil Procedure. ,
    A verdict for the plaintiff is not warranted when the only evidence that a painter’s scaffold gave way under the deceased is the testimony of his son, who said ■ that he heard a scream and a. crash, looked up and saw one end of-the scaffold ' was two feet lower than the other end resting on the coping of the roof; that he found his father unconscious on the roof after the alleged fall of the scaffold, when no complaint that the scaffold fell was made to any one until nearly two years after the alleged injury.
    Moreover, a judgment for the plaintiff cannot be sustained as a matter of law when there is a total failure to show more than that one end of the scaffold, while operated by the decedent, descended abodt two feet to a coping. Such painter’s scaffold is not intended to remain stationary, but is designed to be lowered. Hence, proof of such descent is no proof that the scaffold was defective.
    It is error to charge that the maxim of res ipsa loquitur applies to the descent of such scaffold.
    Appeal by the. defendant, H. & H. Reiners, from a judgment of the Supreme Court in favor of the plaintiff for damages for the death of her intestate by the negligence of the defendant, entered in the office of the clerk of the. county of Kings upon thti verdict of a jury rendered after a trial at the Kings County Trial Term, - and also from an order entered in said clerk’s office denying the defendaht’s motion for a new trial made upon the minutes.
    
      Ira Leo Bamberger, for the appellant.
    
      Frank F. Davis, for the respondent.
   Gaynor, J.:

The witness Reiners being a stockholder of the defendant (a business corporation), the objection of the plaintiff to the questions to. him concerning personal transactions between him and the deceased were properly sustained. He was not competent to testify that he did not put the deceased to work on the scaffold which it was claimed was furnished by the defendant and fell under him from defectiveness and caused his death, and the like. The test of interest in a withess under section 829 of the Code of Civil Procedure is the old common-law rule of interest, and that rule classed stockholders o.f a corporation as interested witnesses in favor of the corporation in an action by or against it (Gilbert v. Manchester Iron Mfg. Co., 11 Wend. 627). Such cases as Montgomery County Bank v. Marsh (7 N. Y. 481) and Washington Bank v. Palmer (2 Sandf. 686) are no longer alive or applicable. They were rendered under sections 351 and 352 of the Code of Procedure of 1848 (which became sections 398 and 399 in the revision of 1849). These sections made stockholders of -all corporations competent witnesses for the corporation,'and that remained the- rule until they were superseded by the present Code provision. The mere reading of them iñ i connection with the Montgomery County Bank and Washington Bank cases suffices "to show this. Section 829 by an amendment now excepts Stockholders of banking corporations from .the rule. This 1 suppose was done under the mistaken notion of making the statute conform to the Montgomery County Bank case, which was. erroneously taken' as expressing a rule applicable to bank stockholders only, instead of to all-stockholders. There.is-no more-reason to exempt bank stocks holders than any' other stockholders, and that case did hot essay to do so. hior is the common law rule of this State tiiat the taxpayers' of a municipal corporation are not incompetent as witnesses for interest in an" action by or against such corporation (Pack v. Mayor, 3 N. Y. 489) applicable. The. same must be said of the case of Bopple v. Supreme Tent (18 App. Div. 488), which may not be free from doubt in classifying the members of fraternal benefit societies with, taxpayers of municipal corporations on this head of interest of witnesses.

The evidence that the scaffold gave, way under the deceased at all is of a very improbable character. There is none except by his son, an interested witness. He says that Reiners, a stockholder and officer of the defendant, called" him and his father from painting they were doing, in the defendant’s distillery, and set them to work^ painting the rear of one of a_row of tenement houses of the defend^ant in the rear of the distillery and fronting on the next street; that .the usual painter’s scaffold, about twelve feet long, was already" swung with ropes and pulleys about twenty-five or thirty feet from the ground ■; that he went to work on the ground painting the lowest part of the wall, while his father went to work, painting on the scaffold; that while, at work he heard a scream and a crash, and looking up saw that one end of the scaffold was two feet lower than the other and. resting on the coping of the roof of the .adjoining extension of the distillery^ and that his father was not to be seen ■; that he ran out to the street through the house they were painting, and thence around into the distillery and up to its roof through a scuttle, and found his father lying unconscious' there ; -that he accompanied him down through the scuttle and the distillery to the street, took him into a room of one of the row of tenement houses and stayed there with him about two hours, and then walked home with him. This was on September 27, 1900. The father died on October 2nd following of myelitis (inflammation of the spinal cord)? as is claimed, which comes of several causes besides violence. No mark of violence was noticed on him by the physician who was called in three days after the alleged accident and treated him until he died, or by any one, except that one of the sons says he saw a black mark behind his ear after the undertaker had laid him out The doctor as it plainly appears from his evidence was not told of any accident and did not know he was treating such a case. The son told no one in the distillery, there being twelve or more there, or any one in the ténement houses, which were filled with tenants, and called for no assistance; and while the father was at home before he died'the mother and one of the sons wrote to Mr. Reiners oh two different days that the father could not come to work as he was sick abed. None of them ever suggested that he had been hurt, and Mr. Reiners nor any one connected with the defendant-was told of .it or ever 'heard of it until this action was brought two years later, viz., about August 1, 1902. There was no evidence whatever that any part of the scaffold or its attachments broke or gave way. Moreover, the- evidence of the third party from whom the scaffold was hired, and who was called by the plaintiff, is that -he delivered it to the deceased at the house where the painting was done on August 21st, and that it was returned in perfect condition on September 27th (the day of the accident). The coping on the roof of the extension on which the end of the scaffold is said by the son to have been resting when he looked up seems to have been of the usual height above the roof, a foot or two, which shows the extent of the father’s fall, if he fell.

But the judgment cannot be sustained as matter of law. The defendant’s motion to direct a verdict at the end should have been granted. The verdict rests on nothing but the proposition that the mere fact of the descent of the end of the scaffold to the coping (if it occurred) was evidence from which alone it could be found that the scaffold fell from defectiveness. This is necessarily so, for there was no evidence of anything lacking, or of any defect or break in 'the scaffold or its attachments. Oil the 'contrary,.'there was affirmative evidence from both sides that nothing was wrong with them. ■In other words, the maxim.“The' thing speaks for itself” was •applied to the case._ The main charge shows this, and in addition a. ■subsequent request of the'defendant that it be charged was granted. This -was erroneous. The scaffold was not stationary. On the contrary, it was suspended by ropes through pulleys, and it was part oí the work of the deceased or whoever worked oU it to unfasten the ropes at the scaffold from timé to.time as his work progressed and lower it by the pulleys with himself upon it* until in that way he had the wall all- painted and reached the ground. The deceased may have been lowering the end of the scaffold where he was when it is claimed- he fell (a thing he had to do continually at short inter? vals), and let the rope slip. There was no evidence that he Was not doing so. The maxim only applies where the accident could not have happened except from defectiveness of the appliance.

The judgment and order are reversed.

Woodward, Jenks, Hooker and Rich, JJ., concurred.

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