
    John S. Pedersin, Appellant, v. Leonhard Michel Brewing Company, Respondent.
    Second Department,
    April 30, 1913.
    negligence —injury to servant of independent contractor repairing smokestack — defective hoisting apparatus furnished by owner — Labor Law — evidence—purpose of gantline — contributory negligence.
    In an action under the Labor Law brought by the servant of an independent contractor engaged in repairing a tall smokestack owned by the defendant to recover for injuries caused by the fact that a hook holding the pulley of a “ gantline ” by which the plaintiff was being hoisted to the top of the stack broke,, this appliance having been stated by the defendant to be new, it is error to exclude evidence tending to show that the original purpose of the gantline was to enable workmen to reach the top of the smokestack when necessary.
    If such evidence had been admitted, the jury would have been justified in finding that the defendant furnished an unsafe appliance to one directed to perform labor in repairing the smokestack.
    There being no evidence that such use of .the gantline was unusual, and the defendant, having stated that the appliance was comparatively new, and it appearing that the plaintiff tested its strength before using it, he cannot be held to have been guilty of contributory negligence as a matter of law.
    Thomas and Stapleton, JJ., dissented.
    Appeal by the plaintiff, John S. Pedersin, .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. Í3th day of March, 1912, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case, on a trial at the Kings County Trial Term, and also from an order entered in said clerk’s office on the 12th day of April, 1912, dismissing the said complaint.
    
      William Seward Shanahan, for the appellant.
    
      John C. Robinson, for the respondent.
   Burr, J.:

Plaintiff appeals from a judgment of nonsuit.- Defendant, the Leonhard. Michel Brewing Company, was the owner of certain buildings .used for brewery purposes. Through the roof of one of these an iron smokestack ran, which was -about ■ seventy-five feet in height and five or six feet in diameter. This stack was somewhat out of repair,. and á firm of riggers had entered into a contract with defendant to put a new band around the stack and new stays to support it. Plaintiff was in .the employ of the contractors. In order to do this work it was necessary to reach the top of the stack. All of the materials necessary to make the repairs were furnished by' the contractors, with one exception. Prom the top of the stack a line ran, described as a gantline. It was of steel, and passed through a pulley block, which had a hook' upon the end thereof. This hook was fastened to another hook at the top of the stack. When passed through the block, the ends of this gantline hung down and reached to the roof of the building. The gantline, pulley and hooks belonged to defendant. Plaintiff procured a boatswain’s chair, attached it to one end of the gantline, and was raised by his fellow-workmen to the top of the stack. This was for the purpose of drawing up other rigging necessarily used in the repair thereof. Having attached a part of this rigging to one of the stays, of the stack, plaintiff was then lowered to the roof, and when he was being drawn, up a second, time for the purpose of attaching additional rigging to the top of the stack, the hook in the pulley block broke, ‘ and plaintiff fell to the roof and was injured.

If the extent of defendant’s liability is to b.e measured solely by common-law rules, it may be that the nonsuit was proper. But a Statutory duty arises by virtue of the provisions of the Labor Law, to the" effect that “A- person employing or directing another to. perform labor of any kind in the * * * repairing * * * of a house, building or structure shall not furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders or other mechanical contrivances which are unsafe, unsuitable or improper, and which are not so constructed, placed and operated as to give proper protection to the life and limb of a person so employed or engaged.” (Consol. Laws, chap. 31 [Laws of 1909, chap. 36], § 18.) If this statute is applicable, therefrom arose an obligation to furnish hoists and mechanical contrivances that are safe, suitable and proper, regardless of knowledge or negligence in the matter on the part of those furnishing or causing the same to be furnished. (Caddy v. Interborough Rapid Transit Co., 195 N. Y. 415.) The evidence does not disclose what the original purpose of this gantline was. Several times plaintiff attempted to prove this, but in each instance his effort was defeated by an objection on the. part of defendant, which was sustained, This was erroneous, and this error was serious in character. It might have appeared that the express design and purpose of said gantline was to enable a workman to reach the top of the smokestack by the use thereof if the performance of his duty called him there. For the purpose of this appeal we must assume that such was the case. It did appear from plaintiff’s evidence that the use of the gantline was absolutely necessary in order to enable him to reach the top of the stack unless a scaffold was built around the stack the entire distance from the bottom up. It also appeared that before the work began the contractors told Mr. Michel, one of the officers of defendant, “We have to use that gantline in order to get our rigging up on the top of the stack.” Not only was no objection made to such intended use, but in answer to the contractor’s inquiry, Mr. Michel said that “ it was a new line and a new block up there, and they hadn’t been up more than two or three months.” While defendant may not have in express terms assumed responsibility for the safety of the block and gantline, when it so located a hoist or mechanical appliance that the contractor must of necessity or under the requirements of reasonable' convenience in the performance of his work use the same, defendant may be held to have anticipated such use and to have assumed liability to the contractor and his employees for the safety thereof. (Quigley v. Thatcher, 207 N. Y. 66.) Within this rule, if the evidence above referred to was uncontradicted or unexplained, a .jury would have been' justified in finding that defendant erected or furnished or caused to be erected or furnished to one whom it directed to perform labor in the repairing of said smokestock, an appliance which was Unsafe, unsuitable of improper,' and in holding defendant responsible for its insufficiency, unless plaintiff was guilty of contributory negligence. There was no evidence that the use made of the gantline was unusual. There was evidence not only of the statement of one of defendant’s officers that the appliance was comparatively new, but also that plaintiff tested the strength thereof before making use of the samé, It cannot be said as matter of law that hé failed to exercise reasonable care in that regard. ■ ■ •

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

Jenks, P. J., and Hirschberg, J., concurred; Thomas and Stapleton, JJ., dissented upon the ground that the defendant is not liable under the statute.

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