
    William H. Riley, Respondent, v. Patrick H. McNulty, etc., Appellant.
    Second Department,
    November 16, 1906.
    Pleading — sufficient allegation of unsafe scaffold to recover under Labor Law.
    A. complaint by a servant against his master for personal injuries,, which alleges that a scaffold was of -unsafe material and construction, permits a recovery, although it does not plead section 18 of the Labor Law and allege its violation. The fact that the liability of the master is .created or enlarged by statute does hot make the action a statutory one.
    Appeal by the defendant, Patrick H. McNulty, etc.,, from a judgment of the Municipal Court of the, city of New York in favor of the plaintiff entered after a trial by the court. ,
    -Theodore H. Lord, for the appellant.
    
      Frank A. Acer, for the respondent.
   Gaynor, J..:

. The plaintiff was hurt by the fal-1 of a scaffold erected by the defendant, his. employer, for the plaintiff to work on. Counsel for the defendant argues that the complaint was insufficient to-enable the plaintiff to recover for the furnishing of an unsafe scaffold, which section 18 of the Labor Law -forbids, because it did not plead the said statute and allege a violation of it. It was not’ necessary to do so. The complaint alleged thatthe scaffold was of unsafe material and also unsafely constructed, and that sufficed. That the liability of the employer is created or enlarged by statute does not make the action a statutory one. The effect of the statute is to make the négligénce of fellow-servants in the making of a scaffold that of the master, and thus enable the negligence of the master to be proved by evidence which formerly did not prove it. It is enough how as formerly for the complaint to allege the negligence of the master. The difference is that evidence which formerly did not prove his negligence now does (Harris v. Baltimore Machine & Elevator Co., 112 App. Div, 389).

The judgment should be affirmed.

Present — Hirschberg, P. J., Woodward, Gaynor, Rich and Miller, JJ. . -

Judgment of the Municipal Court unanimously affirmed, with costs.  