
    James McCormack, Pl’ff, v. John P. Crawford, Def't.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 14, 1886.)
    
    Negligence—Master and servant—Duty of master to furnish safe TOOLS AND APPLIANCES.
    Where there was evidence showing that the master furnished abundance of material and labor to construct a scaffold, and there was no proof of improper workmen being employed in any department of the work: Held, that a workman who was injured by falling through a. scaffold which his co-laborers had negligently constructed so as to be unsafe, could not recover as against the master, and that the complaint was properly, dismissed.
    Plaintiff was non-suited at the Kings county circuit, and the exceptions were ordered to be heard in the first instance at general term.
    
      Charles J. Patterson, for pl’fE; Johnson & Lamb, for deft.
   Barnard, P. J.

No negligence was proven. The defendant was a contractor for building a sewer. It was a part of the plan of construction that a scaffolding was to be built over the excavation after the trench had been dug and the side plank put in. The scaffolding was for the purpose of letting down to the masons the brick and mortar with which to construct the work. This scaffold was constantly removed forward as the work progressed so as to be always in front of the work being done.' The scaffolding was made of plank resting on cross pieces. The correct way to build the same was to have the planks lap each other and then have a plank laid lengthwise across the joints. The- workmen, including the plaintiff, generally made the scaffolding. This scaffolding was so made that the planks did not join close, and no planks were placed on top across the joints. There was no lack of any material, either plank or cross piece, and no lack of abundant labor to do the work and no proof of improper workmen in any department of the work. The master did his duty. He furnished all he was bound to furnish, and if the employees were negligent—if' they constructed the scaffold so insecurely as to be unsafe—no action will lie against him by one of the workmen. In this case the employees, having abundant material of good quality in all respects, left the ends of the planks where they came together without support, and the plaintiff walked upon it and fell. He has no right of action therefor against the defendant.

Judgment affirmed, with costs.

Dykman, J., concurs.  