
    (1 App. Div. 264.)
    WHALLON v. SPRAGUE ELECTRIC ELEVATOR CO.
    (Supreme Court, Appellate Division, Second Department.
    February 4, 1896.)
    Injury to Employe—Negligence op Master—Safe Place and Appliances.
    Plaintiff, an employé of defendant^ who h.ad contracted only to put elevators in a building, being sent to an upper story to measure the openings for elevators, was injured by stepping off an iron beam onto an insecure scaffold, which had been erected by another, who had the contract for putting in a tile flooring, and was being used for such purpose. Held, that defendant was not liable for failure to furnish a safe place to work in, or safe appliances to work with, there being no evidence that it was necessary for the defendant to construct a scaffold, or that it was ever customary to do so, for such work, and he having furnished planks to place across the open spaces, though they were not taken to that floor, and there being no evidence that it was the duty of any other than plaintiff and his fellow workmen to take them there.
    Appeal from circuit court.
    Action by Fitz M. Whallon against the Sprague Electric Elevator Company. From a judgment for plaintiff, and an order denying a new trial, defendant appeals. Reversed.
    Argued before BROWN, P. J., and PRATT, CULLEN, BARTLETT, and HATCH, JJ.
    J. W. & C. W. Ridgway, for appellant.
    Herbert T. Ketcham, for respondent.
   CULLEN, J.

The action is servant against master, to recover damages for personal injuries claimed to have been caused by the defendant’s negligence. It appears from the evidence that the Postal Telegraph Building was in the course of erection in the city of New York. The defendant was engaged in the construction of the elevators in.that building. The plaintiff was a workman in defendant’s employ, and had worked about the building for some weeks. On ihe occasion of the accident he was sent to the seventh story of the building with one Cantilon, a millwright, also in the defendant’s employ, to take measurements at the hatchways or openings where the elevators were to be placed and operated. The construction of the building had so far progressed that the iron girders at this story were in place, but the floor had not been laid. The floor was to consist of tiled arches turned between the iron beams. The work of laying the floor was being done by the Pittsburgh Terra-Cotta Company. In order to prosecute the work, the workmen of that company made a scaffold between the beams to serve a double purpose,—as a center on which to turn the arches and .sustain the tiles until the mortar set, and as a scaffold on which the workmen stood. In going from the hatchway at the south side of the building to another opening, at the north side, the plaintiff stepped off the iron beam, onto the scaffold, which broke, causing him to fall and severely injure himseli. There was evidence given lending to show that the planks used by the terra-cotta company were insufficient and unfit for the purpose, and that Cantilon had ■called the attention of Williams, who was defendant’s superintendent on the work, to that fact, some two weeks before the accident. On the day of the accident, Williams told Cantilon “to be careful,— not to take any chances,—and, if the scaffolding was laid and secure,” to take plaintiff with 1dm and make the measurements. Cantilon went to the seventh story, and found the scaffold not yet laid. On the second visit he found it completed, and plaintiff and he proceeded to make the measurements. At the close of the plaintiff’s case the defendant moved to dismiss the complaint on the ground of the contributory negligence of the plaintiff, and that no negligence upon the part of the defendant had been established. The motion was ■denied, and an exception to that ruling raises the only questions involved on this appeal. The first ground, that of the contributory negligence of the plaintiff, we think without merit; but the second ground, in our judgment, was well taken.

For the appellant it is contended that the question presented is not that of a place to work, but that of an appliance with which to work. The respondent contends that the question is whether the master provided a reasonably safe place for the plaintiff to do his work. Wethink, ■on either assumption, the same conclusion results. While the rule is well settled that the master must provide the servant a reasonably safe place to do his work, it is plain that this rule only applies where the place is either under the control of the master, or, in the ordinary conduct of the work, should have been under-his control. In .a factory, a mill, a shop, or even a mine or excavation, occupied or worked by the master, it is his duty to take reasonable care that the place is secure and safe for his servant, and the servant has the right to assume that the master has discharged his duty in that respect. But, where the master sends his workmen to work on the premises or property of others, it cannot be said to be his duty to provide a safe place for the servant, for the place is not in any way provided by the master. I cannot find any reported decision in which it has been attempted to enforce liability in such a case. The ■defendant here had no share in the construction of the building, save to erect the elevators. Its implied license on the premises was confined to such parts as were necessary for it to occupy in the work, or in obtaining access thereto; but it had no control over, nor was it responsible for, the condition of the building. The learned counsel for the respondent concedes that the defendant could not have been held liable for’ any defect in the permanent structure, but insists that there is a distinction to be made between what is permanent and what is temporary. We believe that this distinction may be well founded, but the necessary result of such a distinction is that what is temporary must be considered as an “appliance,” and only what is permanent as a “place.” This seems to be the basis of the decision in Butler v. Townsend, 126 N. Y. 105, 26 N. E. 1017, where it was held that a staging on which calkers stood while at work on a vessel was not a “place,” but an “appliance” by means of which the work was to be done. Assuming the scaffold to have been an apliance, the defendant did not construct it, and the only question is, did it, by sending the plaintiff to the floor where it was laid, adopt it as its own? The learned trial court charged the jury that, if it was necessary to furnish the plaintiff a scaffold, it was not necessary that the defendant build one; that, if it found a scaffold there, it was at liberty to use it, but it was bound to ascertain whether it was safe. We think there was nothing in the evidence which would justify a finding that it was necessary for the defendant to construct a scaffold on this floor. The danger, of course, was that of falling through the open spaces between the beams. The defendant had furnished planks to place across such spaces, and they were used when work was being done at the elevator shafts. The evidence is very meager as to how the defendant’s work at this building was being carried on. There was nothing to show that it had at any. time before placed scaffolds over the floors to enable its workmen to cro^s them to the elevator shafts, or that such was the ordinary custom in the prosecution of similar work. Nor was the condition of the work such as, in the absence of proof as to. custom, to authorize the inference that it should have erected scaffolds. The tile men were at work, turning the arches between the beams. As testified to by the plaintiff’s witness Cantilon, the only thing that could have been done was to lay the planks across the floor spaces, for the defendant was not at liberty to interrupt the work of the tile men. Planks had been provided by the defendant. True, there were none on the seventh story; but, if they should have been taken to that story, it is not suggested that there were any other workmen than plaintiff and Cantilon to carry them there. In this respect the case is much weaker than that of Cregan v. Marston, 126 N. Y. 568, 27 N. E. 952, where it was held that the master was not liable for the negligent use by his engineer of an unsound rope, he having furnished a supply of good ropes, though the ropes at the time were locked up in a storehouse. But, if a platform was to be laid across the building, it- also does not appear that it would have been the duty of any one but the plaintiff and Cantilon to have laid it. While the planks were being laid, the spaces between the beams would remain open, and the danger of injury would certainly be as great while laying the planks as while traversing the floor without the planks. Conceding, however, the duty of the defendant in this respect, its duty was discharged when it furnished the planks. The failure to use them, or the improper use of them, whether by Williams or Cantilon, was the negligence of a fellow servant in the detail of the work, for which the master is not liable. Cullen v. Norton, 126 N. Y. 1, 26 N. E. 905. The plaintiff knew that the scaffold was not the scaffold of his master, or provided by him, but built and in use by persons carrying on a different part of the work. He made inquiries of the workmen whether the scaffold was safe, and was told that it was. He was not guilty of negligence in using it under the circumstances, but still, in working on this building, which he knew—in the main, and with the exception of a small detail—was not constructed by his master, he took the risk of danger from such construction. These were the risks of his employment. If there was any negligence in this case, it was either that of Williams, in sending plaintiff to the seventh story while it was in such an unfinished condition, or that of Cantilon, in failing to discover the defect in the platform. As the defendant neither built nor maintained the scaffold, the failure of Cantilon to discover its defects was not imputable to it. The only evidence as to the authority and powers of Williams is that he was superintendent of defendant’s work at the building. The determination of when the measurements should be taken in the upper floors, and how far the construction of the building should have progressed before the attempt to take the measurements should be made, was intrusted to him; but under the case of Cullen v. Norton, supra, his acts in those respects were a part performance of the work itself, and in such acts he did not represent the master, and the acts were those of a fellow servant.

The judgment and order denying motion for new trial, appealed from, should be reversed, and a new trial ordered; costs to abide event. All concur.  