
    D. Austin Williams, Appellant, v. Peter W. Roblin and Herbert B. Hotchkin, Respondents.
    
      Master and servant — injury to the latter from the collapse of a scaffold — when a complaint is to be construed to state a cause of action under section 18 of the Labor Law and not under the Employers’ Liability Act.
    
    Where the complaint in an action brought by an employed against his employer to recover damages for personal injuries sustained by the employee in consequence of the collapse of a scaffold used in the erection of a house which the employer was building sets forth facts authorizing a recovery under section 18 of the Labor Law (Laws-of 1897, chap. 415), and it appears that the pleader had that act, and not the Employers’ Liability Act (Laws of 1902, chap. 600), in mind when he prepared it, it is error for the court to dismiss the complaint because it did not allege the service of the notice required by the Employers’ Liability Act.
    Where, on the trial of the action, it appears affirmatively that the injured employee took no part in the construction of the scaffold and.did not know of the manner of its construction, and the evidence warrants a finding that the collapse of the scaffold was due to its improper and unsafe construction, a prima facie case is made out under section 18 of the Labor Law. ■
    Appeal by the plaintiff, D. Austin Williams, from a judgment of the County Court of Jefferson county in favor of the defendants, entered in the office of the clerk of the county of Jefferson on the 17th day of December, 1903, upon the dismissal of the complaint by direction of the court after a trial before the court and a jury.
    
      John Gonboy, for the apjiellaut.
    
      C. H. Walts, for the respondents.
   Spring, J.:

The defendants, as contractors, were engaged in the summer of 1903 in erecting a dwelling house on Sterling street in the city of Watertown. The plaintiff, a carpenter, was at work for them on this building on the eleventh day of ■ July. He had been working on the north side of the building while McLaren, another workman, was building a staging about eight feet from the ground on the east side. After this scaffolding was completed, except the laying of the last plank of the platform, the plaintiff was directed by the foreman to assist McLaren in sheathing that side of the house. The plaintiff thereupon helped McLaren lift the last plank on the platform, and then the two went upon the staging and, while they were engaged in sheathing, the center brace supporting the scaffolding gave way and the men fell to the ground,-and the plaintiff, as he claimed, received serious injuries. The proof shows affirmatively that the plaintiff took no part in the nailing of this brace or in the construction of the staging aside from helping McLaren lay one plank on the end of the platform. ISTor did he know as to the manner of its construction.

Upon the evidence presented, the jury might properly have found that the breaking down of the staging was due to its improper and unsafe construction.

■ The complaint does not allege the notice essential to bring the case within the Employers’ Liability Act (Laws of 1902, chap. 600), and the nonsuit was granted for that reason. The learned county judge, following the Appellate Division of the first department, held in effect that no recovery by an employee against his employer for injuries received through the negligence of the latter in failing to supply adequate scaffolding, etc., can be sustained unless the cause of action is within the provisions of this act. We think the court improperly construed the act in question. (Gmaehle v. Rosenberg, 178 N. Y. 147, revg. S. C., 83 App. Div. 339 ; Rosin v. Lidgerwood Mfg. Co., 89 id. 245 ; Employers’ Liability Act, §§ 2, 5.)

The complaint sets forth ample facts to authorize a recovery within section 18 of the Labor Law (Laws of 1897, chap. 415), and in its language follows that section quite closely, denoting that the pleader prepared the complaint with that act in mind instead of the one above referred to, and the facts proved were sufficient to make a prima facie case. (Stewart v. Ferguson, 164 N. Y. 553.)

The judgment should be reversed and a new trial granted, with costs to the appellant to abide the event.

All concurred.

Judgment reversed and new trial ordered, with cost to the appellant to abide the event.  