
    William Ackert, Respondent, v. The City of New York, Appellant.
    First Department,
    May 29, 1913.
    Municipal corporations—-negligence,—fall of scaffold—Labor Law — when municipality not liable.
    Sections 18 and 19 of the Labor Law relating to scaffolding furnished for the use-of employees apply to municipal corporations when engaged- -in a private corporate; enterprise for revenue ,as distinguished from the performance of public governmental duties.
    A painter employed by the city of New York cannot recover for injuries received by tho breaking of a scaffold, consisting of “ horses ” built for the city and which supported the platform upon which hewas working, where the collapse of the scaffold was not caused by any inherent defect but by the act of a fellow-servant who, having engaged in an altercation with another workman, broke a leg of one of the horses while violently attempting to mount the platform instead of obtaining access thereto by a stairway. The municipality is not obliged to foresee that an enraged workman might make violent use of the scaffold so as to cause its collapse.
    Appeal by the defendant, The City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 21st day of October, 1912, upon the verdict of a jury for $200, and also from an order entered in said clerk’s office on the 1st day of November, 1912, denying the defendant’s motion for a new trial made upon the minutes.
    
      Harry Crone [Terence Harley and Archibald R. Watson with him on the brief], for the appellant.
    
      William L. Cahn, for the respondent.
   Laughlin, J.:

The plaintiff was in the employ of the defendant as a painter, and on the morning of the 21st of December, 1910, he was assisting in painting the ceiling of the cabin for women on the ferryboat Richmond, and the scaffold on which he was standing gave way, precipitating him to the floor of the cabin, inflicting injuries to recover for which he brought this action.

The scaffold was erected on appliances known as horses, which had been constructed for the city about four weeks prior to the accident- under the supervision of a foreman in charge of the carpenters in the department of docks and ferries, and the only other place they had been used was in doing work on the ferryboat Brooklyn. The horses were about seven feet high, and the longitudinal header forming the top was a piece of three by four inch spruce timber six feet long. The four legs were of yellow pine four inches wide by one and. one-quarter inches in thickness and about seven and one-half feet in length, and they spread so that resting on the ground they were seven feet apart, lengthwise of the horse, and two and one-half feet across the ends. Under the header at either end there was a brace, consisting of a strip of white pine seven-eighths of an inch in thickness and of considerable width — the exact width was not shown — hailed across the legs. There was also another brace across either end, consisting of a strip of board four inches in width and one &nd one-quarter inches in thickness fastened to the exterior edges of the legs of the horse by five tenpenny nails at either end, and projecting beyond the legs to an extent sufficient to afford support to longitudinal braces, consisting of strips of board four inches in width and one and one-quarter inches in thickness on either side of the horse nailed to the legs and resting on said cross braces. The scaffold was erected by the painters on the morning of the accident, but plaintiff did not take part in the erection thereof. It consisted of two rows of horses running lengthwise of the cabin, and painters’ ladders or platforms placed on these horses running across the cabin, so that one ladder or platform rested upon each set of horses, and five rows of planks two by nine inches and about fourteen feet long extending lengthwise of the cabin, from one ladder or platform to another on which they rested. In this manner a scaffold about seventy-five feet in length and from twelve to fourteen feet in width and consisting, in effect, of five sections had been erected.

The plaintiff wasistanding on one of these planks in the middle section of the scaffold, or the third section from either end. There were between forty and sixty painters working on the scaffold, or about ten on each section, or two on each plank. Two pointers working on the same section with the plaintiff, or an adjoining section, had an argument, and one of them jumped off the platform, and the other, on being dared to come down, followed, and they clinched on the floor below and were thus struggling for two or .three minutes when they were stopped by the acting foreman, who ordered them to leave the boat or return to their work. During this encounter twenty-five or thirty of the painters congregated over the painters’ ladder or platform connecting the two sections under which the encounter was taking place. On being separated and ordered off the beat or to return to work, one of the men passed up the stairs and over the banister onto the scaffold, but the other, who weighed about 180 pounds and who appeared to .be in a frenzy, rushed to the side of the" cabin' and stepped upon the seat and then turning around and placing one foot upon the longitudinal brace at the side of the horse over which the painters had congregated and putting his hands on top of the scaffold, leaped, .sprang or “bounded ” toward the top, breaking one of the legs, to which the brace upon which he stepped was fastened, and the horse collapsed, letting down the two sections of which it formed part support. It appears that when the acting foreman ordered the men to stop fighting, the painters who had congregated on the sections above started to separate, and one of them, at least, reached another section before the accident. It is manifest, therefore, that at the time the leg of the horse broke the weight upon it was materially less than it had been while the men were clinched; and the evidence would not warrant an inference that the scaffold fell on account of the weight of the men upon it, or even that such weight contributed thereto; but it clearly points to the fact that the fall was due to this improper use of the brace by the plaintiff’s coemployee. There is a conflict in the evidence as to whether or not ladders were supplied to enable the men to reach the scaffold, but although there is evidence to the effect that the men at times climbed upon the scaffold using the braces as" steps to the knowledge of defendant’s foreman, it is uncontroverted that it was unnecessary for them to climb up the sides of the scaffold, for they could have obtained access thereto by the stairway.

The negligence for which it is sought to hold the city liable, however, is not in failing to provide ladders or to prohibit such use of the braces, but in violating the provisions of sections 18 and 19 of the Labor Law (Consol. Laws, chap. 31; Laws of 1909, chap. 36). The provisions of section 18, so far as material to a decision of the questions presented by the appeal, are as follows: “Scaffolding for use of employees. A person employing or directing another to perform labor of any kind in the erection, repairing, altering or painting 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; ” and those of section 19 are as follows: “All swinging and stationary .scaffolding shall be so constructed as to bear four times the maximum weight required to be dependent therefrom or placed thereon, when in use, and not more' than four men shall he allowed on any swinging scaffolding at one time.”

It is contended at the outset by - the learned counsel for the city that these provisions of the Labor Law do not apply to a municipal corporation. Although municipal corporations are not designated by name, they are included in the term “person” employed in the statute, which is "defined by section 37 of the General Construction Law (Consol. Laws, chap. 22; Laws of 1909, chap. 27) as including corporations and joint stock companies; and section 4 of the Labor Law shows that some of the provisions thereof, at least, were intended to apply to municipal corporations, for it is therein expressly declared, among other things, that any officer of a municipality “ having a duty to act in the premises ” who violates any of the provisions of the Labor Law shall he guilty of a malfeasance in office and liable to suspension or removal. There is no ground upon which it can fairly he inferred that the Legislature did not intend that these statutory provisions should apply to municipal corporations, particularly where, as here, engaged in "a private corporate enterprise for revenue as distinguished from the performance of public governmental duties. (See Townsend v. City of Boston, 187 Mass. 283; Davies v. City of Boston, 190 id. 194; Oakes Mfg. Co. v. City of New York, 206 N. Y. 221; Dillon Mun. Corp. [5th ed.] § 1645; 2 Labatt Mast. & Serv. § 662.)

We are of opinion, however, that the evidence does not show a violation of either section of the Labor Law. It is manifest .that the scaffold was neither. unsafe, nor unsuitable, nor improper for the purpose for which it was designed. It was not shown that it was. not so constructed and placed as to give proper protection to the lives and limbs of those employed upon the work. The defendant could not foresee and was under no legal duty to guard against the violent use of the scaffold by an enraged workman which resulted in its collapse. Great stress is laid upon the provisions of section 19, it being claimed that the facts show that the scaffold was not so constructed as to bear four times.the maximum weight required to be placed thereon when in use. There is, however, no evidence in support of this contention, other than that showing the manner in which and the material of which- the scaffold was constructed and the fact that it collapsed under the circumstances described, which, we think, is wholly insufficient. There is no warrant in the evidence for the inference that this scaffold would not sustain four times the weight which it was required to bear in the performance of the work in question. There is no evidence of the use of improper material in its construction or of any defect arising from use or otherwise. The only reasonable inference to be drawn from the evidence concerning the cause of the accident is, that it was caused by the plaintiff’s fellow-employee, writhing under what he deemed to be a private grievance for which the city was in no manner responsible, in throwing his weight and exerting his strength against the brace with great violence, which is a use for which the horse was not constructed and which the defendant had neither authorized nor permitted, and for the consequences of which is no more liable than if the scaffold was knocked or pulled down during the encounter between the men.

It follows, therefore, that the judgment and order should be reversed and new trial ordered, with costs to appellant to abide event.

Ingraham, P. J., McLaughlin, Clarke and Scott, JJ., concurred.

Judgment and order reversed and new trial ordered, with costs to appellant to abide event.  