
    Rosina Passaretti, as Administratrix of the Estate of James Fierro, Deceased, Appellant, v. Frank Cerra, Respondent, Impleaded with Another.
    
      Negligence — employee of subcontractor killed by fall from plank placed across stair well of building in course of construction — insufficiency of evidence to show negligence on part of general contractor.
    
    
      Passaretti v. Cerra, 215 App. Div. 714, affirmed.
    (Argued March 31, 1926;
    decided May 4, 1926.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered December 12, 1925, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term in an action to recover for the death of plaintiff’s intestate alleged to have been occasioned through .the negligence of defendant. Decedent was employed as a plumber’s helper by a subcontractor of the defendant, and was worldng on the third floor of a building in the course of construction in Long Island City, of which respondent was general contractor. Not far from where decedent worked there was an open stair well about fifteen by ten feet. Across the ten-foot space was a plank eight to ten inches wide and one and one-half to two inches thick. It spanned this open space within eighteen inches of the building wall, and within the same distance of a window opening in the wall. Decedent walked out on this plank and when he had gone about three to four feet, lost his balance and fell off, sustaining injuries from which he died. The plank did not break or fall, and there is no evidence that it moved or shifted in any way, the only evidence' being that it sagged somewhat.
    
      George P. Foulk and William H. Wack for appellant.
    
      John C. Robinson and James B. Henney for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: His cock, Ch. J., Cardozo, Pound, McLaughlin, Crane, Andrews and Lehman, JJ.  