
    Joseph Francis Quigg, Respondent, v. Post & McCord, Appellant.
    Second Department,
    March 5, 1909.
    Evidence — contradicting witness — admissions — master and servant — negligence — injury by defective scaffolding — assumption of risk.
    A plaintiff, suing his master to recover for .personal injuries, is entitled to show that a witness made a statement for the defendant or an insurance company in order to contradict or minimize his testimony.
    Where the negligence charged and proved is the failure of the master to furnish sufficient material for a scaffold, as he had promised on request, it is not error to refuse to dismiss upon the ground that the plaintiff assumed the risk, that question being for the jury under the Employers’ Liability Act.
    
      ' Appeal by the defendant, Post & McOord, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Nassau on the 19th day of June, 1908, upon the verdict of a jury for $10,000, and also from an order entered in said clerk’s office on the 22d day of June, 1908, denying the defendant’s motion for a new trial made upon the minutes.
    
      Charles J. Fay [Frank Verner Johnson with him on the brief], for the appellant.
    
      James M. Gray [Joseph E. Owens with him on the brief], for the respondent.
   Gaynor, J.:

The denial of the defendant’s motion for the withdrawal of a juror because the counsel for the • plaintiff asked the defendant’s superintendent on cross-examination whether he had not made a statement for the defendant “ or an insurance company ” was not error. It was a proper question. It is common for trial Judges to hear such questions asked and answered in the affirmative, and for the statement to the insurance company to be then called for and produced. The plaintiff has the right to find out whether the witness has made a statement to any one, and to use it if he can to contradict the witness, or minimize his testimony. Such statements are invariably got of the witnesses by the insurance company, as is familiar to all. The notion of defendant’s counsel that jurymen will find a verdict against an insured defendant when they should or would have found the other way if he had not been insured, is an impeachment of juries which has no foundation (Rinklin v. Acker, 125 App. Div. 244, 249).

There was no error in refusing to dismiss on the ground that the plaintiff assumed the risk. The workmen, of whom the plaintiff was one, had to make shifts and changes in the high scaffold on which they were working from time to time—.they were building a high steel smokestack, and liad to set the scaffold higher and higher as it went-up — but the claim of the plaintiff was that sufficient material for the scaffold was not furnished, and that that was the cause of the plaintiff’s fall. There is evidence to that effect, and that the material was asked for and promised. Whether the plaintiff was negligent in continuing at work after the material was promised, or (which is the better way of saying it) assumed the risk, was for the jury to determine. Section 3 of the Employers’ Liability Act expressly provides so, and it in terms applies in all cases, i. e., even to cases in which the notice of the injury provided for by another section of that act was not given (Rice v. Eureka Paper Co., 174 N. Y. 397). On appeal, therefore, the question is one of weight of evidence only.

The judgment should be affirmed.

Present — Jenks, Gaynor, Rich and Miller, JJ.

Judgment and order unanimously affirmed, with costs.  