
    Antonia Rotondo, as Administratrix, etc., of Vincenzo Rotondo, Deceased, Respondent, v. Neptune B. Smyth, Appellant.
    
      ¡Scaffold constructed by the employee falling thsrefrom— the master is not liable when the scaffold does not comply with section 18 of chapter 415 of the Laws of 1897.
    In an action brought to recover damages resulting from the death of the plaintiffs intestate while in the employ of the defendant, a boss painter, it appeared that the intestate and one Nelson were directed to paint the shutters on a factory building; that, the space being so restricted that the ordinary scaffolds could not be used, the defendant instructed Nelson and the intestate to construct one; that Nelson and the intestate constructed, out of material procured by them from the defendant’s shop, a scaffold which did not comply with section 18 of chapter 415 of the Laws of 1897, which provides: “Scaffolding or staging swung or suspended from an overhead support, more than twenty feet from the ground or floor, shall have á safety rail of wood, properly bolted, secured and braced, rising at least thirty-four-inches above the floorin' main portions of such scaffolding or staging and extending along the entire length of the outside and the ends thereof, and properly attached thereto, and such scaffolding or staging shall be so fastened as to prevent the same from swaying from the building or structure.”
    The evidence tended to show that while the intestate was standing upon, or stepping from the sill of a window to the scaffold, he lost his balance and fell in consequence-of the swaying of the scaffold.
    
      Held, that the scaffold having been constructed by the intestate and his companion, and not by the defendant, .the latter was not liable because the scaffold did not comply with the law nor because it was not so fastened as to prevent it from swaying. .
    O’Brien, J., dissented.
    Appeal by the defendant, Neptune B. Smyth, from a judgiáent of the Supreme Court in favor of the. plaintiff, entered in the office, of the clerk of the.county of New York on the 18th day of May, 1903, upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the 28th day of May, 1903, denying the defendant’s motion for a new trial made upon the minutes.
    
      L. Sidney Oarrere, for the appellant.
    
      Mantin Weehsler, for the respondent.
   Van Brunt, P. J.:

This action was brought to recover damages arising from the death of the plaintiff’s intestate, who fell while doing some painting upon a building. The defendant in this action was a boss painter and had a contract to paint the factory building at Ho. Í8 Park street, in the ■city of Hew York. The plaintiff’s intestate was a journeyman painter, who was employed by the defendant upon this job. Upon the 21st of Hovember, 1902, the defendant’s employees, consisting of plaintiff’s intestate and one Helson, commenced to paint the window shutters' in the rear of the factory beginning on the top or seventh floor. In consequence of the contracted space in which the painting was to be done, the ordinary scaffolds which were made for work of this kind could not be used ; and the defendant instructed H elson and the deceased to construct a scaffold and put it up for the purpose of doing the painting. The two men procured from ■ the defendant’s shop the necessary materials, and constructed the scaffold, which consisted of three two-inch planks of about sixteen feet in length, held together by four wooden cleats which were • longer than the scaffold was wide. These cleats.were nailed across . the planks in pairs a few feet from each end. Around this scaffold were then placed scaffold irons which were adjusted under the planks and between the cleats, the object of the cleats being to prevent the scaffold irons from slipping one way or the other along the planks." These irons were connected with the roof by blocks and tackles. Across the back of the scaffold on the side furthest from the wall the men had stretched some pieces of rope three feet above the scaffold as a guard against accidents.

On the morning of the twenty-first of Hovember Helson and the deceased had raised this scaffold to position and commenced the work of painting the iron shutters on the top floor. The deceased began painting the shutters of the window near the end of the scaffold, and he either stood upon the sill in the act of painting the shutters, holding on by an iron crossbar in the middle of the window or was stepping from the window sill to the scaffold when he fell and was killed. The claim of negligence against the defendant is that the scaffold upon which this work was being done did not comply with section 18 of chapter 415 óf the Laws of 1891, which provides as follows:

Scaffolding or staging swung or suspended from an overhead support, more than twenty feet from the ground or floor, shall have a safety rail of wood, properly bolted, secured and- braced, rising at least thirty-four inches above the floor or main portions of such scaffolding or staging and extending along the entire length of the outside and the ends thereof, and properly attached thereto, and such scaffolding or staging shall be so fastened as to prevent the same from swaying from the building or structure.”

It is certain that the scaffold did not comply with this law; but it seems to us, in view of the evidence that it was constructed by the workmen who were to work upon it and was in their charge and under their control, that such scaffold did not come Avithin the provisions of the act referred to, so as to charge the defendant with negligence for want of compliance with the statute. The men who were to do the work themselves constructed it, and the defendant had nothing to do with it and did not furnish the scaffold as a scaffold. It was prepared by the painters themselves; and, therefore, if there were any negligence in its construction, they were liable for it and not the defendant.

It is further claimed that the statute was not complied with in that the scaffold was not so fastened as to prevent the same from swaying from the building or structure. If this portion of the law was not complied with, it was the fault of the men who were working upon the scaffold. They were the ones whose duty it was to-fasten it in the manner required by the act. The defendant, the employer, was not responsible for the manner in which they conducted themselves in the doing of the Avork. They were bound to see, under the circumstances, that the scaffold was properly secured, and if it were not so secured it was the fault of the workmen themselves, and no negligence on that account is to he imputed to the defendant.

It was claimed upon the part of the defendant upon the trial that the deceased did not fall from the scaffold, but was standing upon the Avindow sill holding on by the crossbar and when the crossbar gave way he fell. There is evidence controverting this claim, to the effect that he was stepping from the sill to the scaffold and, the scaffold swaying, he lost his balance and fell. The evidence, however, that he had the crossbar in his hand when he fell and the position he must have occupied in order to reach the crossbar would- militate against this claim of the plaintiff and would seem to support that of the defendant. There may have been sufficient, however, in the testimony of the witnesses upon this point to submit the case to the jury. But we think that upon the question of the negligence of the defendant in the furnishing of the scaffold and its management there was no evidence tending to charge him with negligence, and if there was any negligence it was that of the deceased, and Nelson who constructed the scaffold and were working together upon it.

We think, therefore, that the judgment and order should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Ingraham, McLaughlin and Laughlin, JJ., concurred; O’Brien, J., dissented.

Judgment and order reversed, new trial ordered, costs to appellant to abide event..  