
    Frank A. Cunningham, Appellant, v. Staten Island Rapid Transit Railway Company, Respondent.
    Second Department,
    November 6, 1914.
    Master and servant — negligence — injury by breaking of ladder — proof not justifying recovery.
    A tinsmith, employed to repair a gutter, who borrowed a ladder from another workman and was injured when the ladder broke, owing to the fact that the person from whom it was borrowed mounted the ladder so that it was supporting two persons, cannot recover in the absence of evidence of poor construction or bad material in the ladder, or authority from the defendant giving the person from whom the ladder was borrowed a right to mount it while in use by the plaintiff.
    Appeal by the plaintiff, Frank A. Cunningham, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Richmond on the 24th day of November, 1913, upon the dismissal of the complaint on the merits by direction of the court at the close of plaintiff’s case.
    
      Richard J. Donovan [Herbert D. Cohen with him on the brief], for the appellant.
    
      Lyle H. Hall [ William J. Kenney with him on the brief], for the respondent.
   Putnam, J.:

Plaintiff, a tinsmith and roofer, had taken down an old gutter on the defendant’s storehouse at Clifton, S. I., and was to replace it with "a new hanging gutter to go up in twenty-foot lengths. He had brought from the tinsmith’s shop one ladder joined in three sections, the end rungs going into connecting grooves or sockets. Plaintiff, who had only this ladder which he had turned over to his helper, went around to the other side of the storehouse and asked from Mr. Ooppinger, a painter there, to borrow the ladder on which Mr. Ooppinger was standing. Mr. Ooppinger obligingly came down and let plaintiff take his ladder, saying he must have it back soon. Plaintiff took it around and set up and mounted on this borrowed ladder, while his helper ascended the other one, holding one end of the new gutter that was being nailed up. After plaintiff had stood on the the third or fourth rung from the top, with his head above the eaves, for about fifteen or twenty minutes, Mr. Coppinger came and asked for the return of his ladder, and started to come up. When Mr. Coppinger had come about half way up, the ladder broke under this additional weight, throwing plaintiff down with serious injuries.

The complaint charges a breach of section 18 of the Labor Law (Consol. Laws, chap. 31 [Laws of 1909, chap. 36], as amd. by Laws of 1911, chap. 693), and is also drawn under the Employers’ Liability Act (Labor Law, art. 11, as amd. by Laws of 1910, chap. 352), so that the statutory notice was admitted on the trial. Many charges of negligence were pleaded. But the main question was whether any defect was shown in a ladder which bore plaintiff well until an intruder mounted it and doubled its load.

Plaintiff testified that he had seen such a sectional ladder carry two men (at a pier in the East river with another employer) about a year and a half ago. Upon further inquiry,. it came down to the statement that two men would “ get off and on the ladders at the same time ”— which is far from proving that such jointed ladders should carry two men near the middle of their length as extended. Hence this ladder was not shown to be unsafe or improper for the use which defendant designed or permitted. There was no evidence that the material was decayed or otherwise bad. Neither was the ladder shown to have a defect as a “ way ” under 0the Employers’ Liability Act. (McKay v. Hand, 168 Mass. 270; Heiser v. Cincinnati Abattoir Co., 205 N. Y. 379.)

As there was no evidence of poor construction or bad material in the ladder, or authority from defendant for the painter to mount the ladder with plaintiff also on it, there was no question for the jury, and the learned trial justice rightly dismissed the complaint.

The judgment, however, must be modified by striking out the erroneous recital that the complaint is dismissed “upon the merits,” and as thus modified the judgment should be affirmed, without costs.

Jenes, P. J., Thomas, Carr and Stapleton, JJ., concurred.

Judgment modified by striking out the words “upon the merits,” and as thus modified affirmed, without costs.  