
    Rachel Pearlman, as Administratrix, etc., of Harry Pearlman, Deceased, Respondent, v. Raymond M. Booth, Appellant.
    Third Department,
    January 21, 1914.
    Master and servant—negligence—death by breaking of scaffold — defect in plank not discoverable by observation — assumption of risk — charge — bankruptcy of defendant.
    The plaintiff’s intestate while standing on an elevated scaffold and engaged in shoring up cement arches was killed when a board, upon which he and his fellow-workmen stood, broke, owing to the fact that it had been partially sawed"in two. The cut was obscured by cement, so as not to be discoverable by mere observation. The floor of the scaffold had originally consisted of four boards, but during the work the defendant’s foreman had ordered three of the boards to be removed. Evidence examined, and held, that the defendant was liable under section 18 of the Labor Law and that the jury properly found that the decedent was free from contributory negligence.
    The defendant did not escape liability by his subsequent discharge in bankruptcy. •
    An error in the charge as to the assumption of risk was harmless, for the plank broke because of the defect aforesaid which was not discoverable upon inspection and was not known to the decedent.
    Appeal by the defendant, Raymond M. Booth, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rensselaer on the 23d day of May, 1913, upon the verdict of a jury for $10,000, and also from an order entered in said clerk’s office on the 19th day of June, 1913, denying the defendant’s motion for a new trial made upon the minutes.
    
      Rosendale, Hessberg, Delaney & Haines [Peter A. Delaney of counsel], for the appellant.
    
      O’Brien & Murray [M. L. Murray of counsel], for the respondent.
   Smith, P. j.:

This action is brought to recover damages resulting from the death of plaintiff’s intestate while employed by the defendant in connection with certain structures, a part of the coal pockets of Peterson & Packer, which said construction had been undertaken by this defendant. Some cement arches had become defective by reason of the action of the frost. Plaintiff’s intestate and three or four other carpenters were placed at work in shoring up the ceiling of those arches. They had been working upon the south side and were transferred to the north side of the arch. Here they found a scaffold, which they were directed to use, upon which were four boards. The scaffold was raised about forty feet from the ground. In the process of shoring up the ceiling upon the north side they were directed by the foreman to take first two boards from the scaffold floor and afterwards a third board, leaving them only one board for their scaffolding. This board broke and caused the plaintiff’s intestate to fall to the ground, resulting in injuries which caused his death. After the accident it was discovered that this board which broke had been partly sawed in two. By reason, however, of the cement juice, as it is called, upon the board such defect was not discoverable upon mere observation. This action is brought both under the Employers’- Liability Act and generally under the Labor Law as well as under the common law. (See Consol. Laws, chap. 31 [Laws of 1909, chap. 36], art. 14, as amd. by Laws of 1910, chap. 352; Id. § 18, as ami by Laws of 1911, chap. 693; Code Civ. Proc. § 1902 el seq.) The defense consists of a general denial of allegations of contributory negligence and assumption of risk on the part of plaintiff’s intestate and, further, that since the accident the defendant has been adjudged a bankrupt and thereby discharged from this liability.

Under the authorities we are not authorized to hold that a discharge in bankruptcy is effective to cancel a claim founded upon a tort. (Brown & Adams v. United Button Co., 149 Fed. Rep. 48; Matter of Crescent Lumber Co., 19 Am. Bank. Rep. 112; Matter of Ostrom, 26 id. 273; Matter of New York Tunnel Co., 159 Fed. Rep. 688.)

It is claimed by the defendant that plaintiff’s intestate was one of the parties who constructed this platform, and as to him the Labor Law does not apply. This claim is not borne out by the evidence. It is true that the plaintiff’s intestate with others removed the scaffold from one place to another, about three feet distant, but the same boards which the master had selected were used, and the workmen might well assume that they had been properly selected. The master’s liability, therefore, under section 18 of the Labor Law would seem to be clear. The issue as to the contributory negligence of plaintiff’s intestate was, we think, properly decided. It cannot be said that the verdict of the jury was against the weight of evidence or was excessive. He was earning upward of a thousand dollars a year and had a wife and four little children dependent upon him.

The serious question in the case arises from the charge of the learned judge to the effect that if the defendant’s foreman directed the workmen to take the third board for the purpose of shoring up the ceiling, thus leaving them with only one board, as matter of law the defendant had assumed the risk and the intestate had not. To this charge an exception was duly taken. It is true, as stated by the learned trial judge, that the doctrine of assumption of risk rests upon an implied contract. Under the common law if a servant by direction goes to work in a room which has an unguarded opening of which he has knowledge he assumes the risk. The mere fact of the defendant’s direction to go to work in that room does not change the contract which the law implies. Nor, in my judgment, did the direction of the defendant’s foreman to take the third plank, thus leaving the plaintiff’s, intestate and the other workmen with a single plank in the scaffold, change the implied contract arising from the employee’s undertaking work or remaining therein with known dangers. While not agreeing with the rule of law charged, in my judgment the charge was harmless, because this plank broke by reason of its defect, which by all the proof was not known to plaintiff’s intestate. Without knowledge of this defect it is manifest that the doctrine of implied contract does not apply, and the plaintiff’s intestate did not assume the risk.

It follows, therefore, that the judgment and order must be affirmed, with costs.

Judgment and order unanimously affirmed, with costs.  