
    Nettie S. Rice, as Administratrix of the Estate of Bird L. Rice, Deceased, Respondent, v. H. P. Cummings Construction Company, Appellant.
    
      Rice v. Cummings Construction Co., 169 App. Div. 832, affirmed.
    (Argued December 15, 1916;
    decided January 9, 1917.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered November 15, 1915, affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover for the death of plaintiff’s intestate, alleged to have been occasioned through the negligence of the defendant, his employer. Plaintiff’s intestate while employed as a carpenter engaged in constructing, tearing down and rebuilding temporary forms, scaffoldings and superstructures necessary to the building of a concrete dam across the Hudson river, was fatally injured by falling from a portion of said temporary structures to the river bed beneath. Plaintiff’s claim is that while her intestate was nailing a board in an upright position near the outer edge of the staging, which was to brace the electrical equipment, he fell because a floor plank tipped up and there was no guard rail, and that negligence lay in violation of the requirements of the scaffolding act (Labor Law, § 18). Defendant claimed that Rice was himself engaged in demolishing the staging, and that he stepped upon a floor plank which he had torn loose, which tipped and caused him to fall between the floor stringers.
    
      Charles B. Sullivan for appellant.
    
      James McPhillips and C. E. Fitzgerald for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Hisoock, Oh. J., Chase, Collin, Cuddebaok, Hogan, Cardozo and Pound, JJ.  