
    George Cooper, Appellant, v. Joseph Fleischman, Respondent.
    (Supreme Court, Appellate Term, First Department,
    April, 1914.)
    Negligence — injury to employee by breaking of ladder — obligations of employer—■ evidence — calling -attention of employer to defects in ladder.
    Where plaintiff was injured ’by the breaking of a ladder he was using about his work, rand the issue of whether or not he was in the employ of defendant was not dependent upon whether defendant, as he testified,, was at the time of plaintiff’s employment the argent of a corporation, butum^ whether defendant did tyot persozishA^oyW|g^gyjJ||^B‘ao]3S of an employer, the ^Ijury upon „ .u.uk of evidence may properly determine the) question of fact in favor of plaintiff, and an order setting aMde a verdict in his favor as against the weight of evidence will be reversed.
    Where though pdaintiff’s testimony is uncorroborated the surrounding circumstances render his story probable, and defendant’s testimony is corroborated by another employee, the jury could reasonably and properly accept plaintiff’s version of the accident, it appearing that defendant was in. control of the ladder which was owned by the corporation, and could have produced other witnesses to testify to its condition and ownership, and to the existence of other ladders marked with defendant’s name which he permitted the corporation to use in connection with his business.
    
      Where an employee calls the attention of his employer to defects in a ladder and the employer assumes to and does repair it in such a manner that the infirmities though hidden are not cured, the employer can properly he held negligent in furnishing an improperly repaired ladder, and the employee should not be held liable for contributory negligence in using it.
    Appeal by the plaintiff from an order of the Municipal Court of the city of New York, borough of Manhattan, third district, setting aside a verdict rendered in favor of the plaintiff.
    Henry Hoelljes and William J. Carey, for appellant.
    Rosenthal & Heermance (Clayton J. Heermance, of counsel), for respondent.
   Lehman, J.

The pbin was injured by a fall occasioned by the breaking c; ladder. The plaintiff under the issues raised by the ‘sn plaint was required to show that at the time of tike ¡- .ecident he was in the defendant’s employ, and that the accident occurred through defendant’s negligence. The jury rendered a b ff-vor, after a fair and full charge by the trial justice. ^Thereafter the trial justice set aside the verdict upon fhe ground that it was against the weight of evidence.

Upon the first issue, the plaintiff testified that the defendant engaged him personally; that the defendant never disclosed that he was acting as agent for a corporation, and that he was at all times in apparent control and ownership of the premises where the plaintiff worked. On the other hand, the defendant showed that he was merely the manager of a corporation that controlled the premises, though he permitted the corporation to use his name in connection with the business. He further testified that he told the plaintiff that he was employing him for the corporation, and that plaintiff had at all times notice to this effect.

If the plaintiff is bound to show not only that the defendant employed him, but that the defendant obtained the benefit of his services, then in my opinion the verdict was clearly against the weight of evidence for there is no doubt in my mind but that the corporation was actually the owner of the business, and received the benefit of the plaintiff’s services. While these facts would in my opinion be sufficient to permit the plaintiff to show that the corporation was responsible for all the acts of the defendant as the defendant’s actual, even if undisclosed principal, still if the defendant actually engaged the plaintiff, and entered into a personal contract with him, the plaintiff has, I think, a clear right to regard the defendant as his actual employer, and to look to him to carry out all the obligations of the relationship which the defendant chose to personally assume including those obligations of reasonable care which the law imposes upon an employer.

The mere fact that the plaintiff’s services were obtained for the benefit of a third person canr.ot change the fact that he was actually in the defendant’s employ, if the defendant personally engaged him, and assumed direction of his activities under his personal contract. The issue of whether or not the plaintiff was in defendant’s employ consequently does not depend upon the question of whether in fact the defendant was at this time the agent of the corporation, but rather upon the question whether the defendant did not assume personally the obligations of an employer and upon this issue there is a plain question of fact, which the jury could properly determine in plaintiff’s favor.

Upon the issue of negligence the plaintiff testified in effect that on the day before the accident the defendant furnished him with only one ladder, and that that ladder was insecure. He called the defendant’s attention to the need of repairing the ladder. The defendant promised him to repair it, and ordered him to come to work the next morning.' He also testified that the defendant told him that he did have the ladder repaired. The next morning the plaintiff found the ladder, and found that strips of wood had been nailed at the junction of the rungs with the sides. He tested the ladder, but these strips of wood prevented him from determining whether the rungs were properly fastened to the sides. When he ascended the ladder, a step gave way, and precipitated him to the ground. The defendant testified that he furnished the plaintiff with a half dozen sufficient and secure ladders; that the ladder which broke did not belong* to him, but belonged to the owner of the building* in which the business was situated, and that he not only did not promise to repair this ladder or order the defendant to use it, but he actually ordered him to refrain from using any ladder not owned by the corporation for whom the plaintiff was ■ working, and marked with defendant’s name.

While the plaintiff’s testimony is uncorroborated by other witnesses, and the defendant’s testimony is corroborated by another employee, I think that the jury could reasonably and properly accept the plaintiff’s version of the accident. Not only are there surrounding circumstances rendering the plaintiff’s story probable, but it should not be overlooked that the defendant was in control of the ladder which broke as well as of any ladders owned by the corporation, and conld have produced other witnesses to testify to the condition and ownership of the broken ladder, and to the existence of other ladders marked with his name, if his testimony in this respect is true.

There remains only to consider whether on the plaintiff’s own evidence he has shown negligence on defendant’s part, and the absence of contributory negligence on his own. It seems to me that even though a ladder is an instrumentality of such an ordinary nature that an employee would usually recognize any infirmity as well as the employer, yet where the employee calls the attention of the employer to defects in the ladder, and the employer assumes to repair it, and does repair it in such a manner that the infirmities are hidden, but not cured, then the employer can properly be held negligent in furnishing an improperly repaired ladder, and the employee should not be held liable for contributory negligence In using the ladder after it has been so repaired.

It follows that there is no valid basis for disturbing the jury’s verdict, and the order setting it aside should be reversed, with costs, and the verdict reinstated.

Seabury and Bijur, JJ., concur.

Order reversed, with costs, and verdict reinstated.  