
    Leon Seredinski, Respondent, v. Joseph Balaban, Appellant.
    Second Department,
    December 30, 1909.
    Máster and servant—negligence—injury by fall of ladder—Labor Law.
    Where a ladder furnished by a master and selected by his employee was safé, he cannot be held for a violation of section 18 of the Labor Law because the ladder slipped when the employee mounted it, if he himself placed it in position.
    Appeal by the defendant, Joseph Balaban, from a judgment of the Supreme Court in favor of' the. plain tiff, entered in the office of the clerk of the county of Westchester on the 12th day of January, 1909, upon the verdict of a jury for S3,000, and also from an order entered in said clerk’s office on the 21st day of January 1909, denying the defendant’s motion for a new trial made upon the minutes.
    
      Louis B. Boudin, for the appellant.
    
      Alvin O. Gass \_Elias Bosenthal with him on the brief], for the respondent.
   Miller, J.:

This is a simple negligence case, servant against master. The plaintiff, a honse painter, was in the employ of the defendant, a contractor. According to his evidence he was sent with a fellow-workman, one Rosen, from the city of New York to Yonkers to paint a house. The two went to the defendant’s toolhouse and selected two ladders, a long and a short one, some scaffolding and paint, which they took with them. Rosen worked with a brush, but the plaintiff says that he (Rosen) was foreman of the job. and directed how. it should be done. In the rear of the house to be painted was a one-story extension having a tin roof which slightly slanted. The plaintiff says that, by Rosen’s direction, he set the long ladder on this roof and got on it to paint the end of the house, that the bottom slipped and he fell, receiving serious injuries. He says that he objected to using the ladder in that manner, insisting that he ought to have hooks or spikes in the bottom of the ladder to.keep it fr.om slipping, but that Rosen told him that it was safe and that he, Rosen, would bring hooks the following day.

■ The questions discussed at length in the briefs, respecting the Employers’ Liability Act, seem to be aside from the case. Bosen’s sole and principal duty was not that of superintendence. He worked with his hands as the plaintiff did. Indeed, the respondent does not seek to support the judgment on the ground of Bosen’s negligence, but asserts that he proved a violation of section 18 of the Labor Law (Gen. Laws, chap. 32; Laws of 1897, chap. 415), which so far as material to this ease provides as follows: “ A person employing or directing another to perform labor of any kind in the * * * painting of a house, building or structure shall not * * * cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders or other mechanical contrivances which are * * * not so constructed, placed and operated as to give proper protection to the life and limb' of a person so employed or engaged.” But the difficulty with that is that the plaintiff himself placed the ladder, and his act does not become that of his master because it was directed by a fellow-servant. Properly used, the ladder was safe. Of course., it was not securely placed, but to hold the master liable for the. plaintiff’s own fault in placing it would certainly be an extension of the Labor Law beyond anything contemplated by its framers. The plaintiff and his fellow-servant selected from the master’s toolhonse such implements as they desired, and there is no question that those implements, properly used, were safe and suitable. The master was -not at fault if they used a ladder where they ought to have used a scaffold. ...

The judgment and order should be reversed and a new -trial-granted, costs to abide the event.

Jenks, Burr, Thomas and Rich, JJ., concurred.

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