
    SCOTT v. KELLY.
    (Supreme Court, Appellate Division, Second Department.
    October 11, 1912.)
    Appeal from Westchester County Court. Action by George H. Scott against George T. Kelly. From a judgment in favor of plaintiff, and from an order denying plaintiff’s motion for a new trial, defendant appeals. Affirmed, without opinion. Harold S. Recknagel, of New York City, for appellant. William A. Walsh, of Yonkers, for respondent.
   PER CURIAM.

Judgment and order of the County Court of Westchester County affirmed, with costs. HIRSGHBERG, WOODWARD, and RICH, JJ., concur.

BURR, J.

I dissent. Plaintiff was not injured by a defective scaffold. If the plank which was laid on the brick piers' 16 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.  