
    John Porter, Respondent, v. American Bridge Company, Appellant.
    Second Department,
    June 5, 1908.
    Master and servant — defective machinery.
    A master is liable for injuries caused by a defective bolt in a carrying crane, where the machine is a permanent structure so that it is his duty to see that it is reasonably safe. •
    That there were good bolts on hand is no excuse, where it was not customary to change them because of wear by use.
    Appeal by the defendant, the American Bridge Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 8th day of August, 1907, upon the verdict of a jury for $2,650, and also from an order entered in said clerk’s office on the 24tli day of July, 1907, denying the defendant’s motion for a new trial made upon the minutes.
    
      John C. Robinson [Frank V. Johnson with him on the brief], for the appellant.
    
      Magner & Carew, for the respondent.
   Woodward, J.:

The plaintiff was injured by reason of a defective clamp used in connection with a carrying crane in use by the defendant. There appears to be no question that the accident was due to the fact that a bolt used in fastening the -clamps- together was defective, and the defendant’s appeal is based principally upon the proposition that, as the master had plenty of bolts on' hand which might have been' had,'the fault lay with the employees in not making use of these bolts. But the fact is that the defect was in the machine or appliance used.; it was not customary to change these bolts; they were used only as a part of the appliance, and it was the duty ■ of the master to see that the appliance w'as reasonably safe. The distinction in the cases is pointed out in. a memorandum by the learned trial court, and the judgment should be affirmed without further discussion. - .

Present — Woodward, Hooker, Gaynor, Rich and Miller, JJ.

Judgment and order unanimously affirmed, w-itli costs.

The - following memorandum was handed down by the court below

Crane, J.:

The defendant says that plaintiff’s verdict conflicts with the Cregan v. Marston (126 N. Y. 568) principle. If the clamp gave way because of improper adjustment, or because fastened with a defective bolt, and.the bolts were constantly wearing out-by use and being replaced by the servant from a furnished supply, or because of a defect arising from use, which the plaintiff himself was supposed^ to’notice and repair, or if the accident were caused by- defective selected material in the putting together of a temporary appliance or lift,- the master - having furnished proper material and fastenings,-then the verdict could not stand. But this is -not all there is of this case, nor all the evidence bearing on this accident. The derrick or lift was a permanent structure or machine of the shop of which the clamp was a part; the bolt was not continuously replaced from a convenient supply because constantly wearing with use (at least. the evidence does not satisfactorily show this); the defendant did not offer to show how long the ■ defective bolt had been in the machine or that any inspection was ever made or a rule for inspection ever existed, or that the bolt had ever been replaced by the men. This case comes within the distinction made by Adams, J., in Yaw v. Whitmore (46 App. Div. 424,425).

Motion for a new trial denied.  