
    Michael Tracey, Appellant, v. Francis A. Williams, Respondent.
    Second Department,
    June 12, 1908.
    Master and servant — negligence — Labor Law — scaffold used in installing heating apparatus.
    ■Section 18 of the Labor Law applies to a scafEold twelve feet high, made with ' horses and planks and iised in installing heating: apparatus in a school build- ■■ ing, whether the work was being done as-part 'of the original construction or ih the alteration and repair of the building. '
    Appeal by the plaintiff, Michael Tracey, from a judgment of the Supreme Court in favor of the defendant, entered in the office, of the clerk of the' county of Kings on the 18th day of November, 1907, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case upon a trial at'the Kings County Trial Term, and also from an order entered in said clerk’s office on the 22d day of November, 1907* denying the plaintiff’s motion ,for a new. trial made upon the minutes.
    
      Martin T. Manton, for the appellant.
    
      G. Glenn Worden [Frank V. Johnson with him on the brief], for the respondent.
   Miller, J.:

The plaintiff, a steamfitter, -while in the einplby of the defendant, was injured by falling from a defective scaffold ■ while putting up strips of wood to hang" steam coils oil. The defendant had a -contract for-putting in the heating apparatus in a new school building. The scaffold Was twelve feet high and was constructed by putting horses one above the other and planks across. The plaintiff had nothing to do With its construction. ‘

The trial' court dismissed the complaint, holding upon the authority of Schapp v. Bloomer (181 N. Y, 125), thát section 18 of ..the Labor. Law (Laws of 1897, chap. 415) did not apply for the reason that .the scaffold was not used in the erection, repairing, altering or painting of a house, building ór structure, but was used to facilitate the placing of fixtures. In the case of Schapp v. Bloomer (supra) the court held that the statute did not apply to ordinary staging put up in a room from four to six feet above the floor to facilitate the placing of fixtures. In that case machinery was being installed in a factory building, bnt the building itself was not being erected, repaired, altered or painted, and the staging, considering its character and the use to which it was put, ivas not thought to be the kind of scaffold contemplated by the statuté. The heating apparatus of a school building is a part of. the building itself; it is a part of the realty; and whether the work upon which the plaintiff was engaged was being done as a part of the original construction of the building, or of its alteration or repair, we think the statute applied. The plaintiff was, doing the kind of work contemplated by the statute; the danger from a defbct in the scaffold, upon which lie was working, was the kind of danger which the statute requires the master to guard against.

The judgment and order are reversed.

Jenks, Hooker, Gaynor and Rich, JJ., concurred.

Judgment and order reversed and new trial granted, costs to abide the event.  