Thomas M. Stokes, Respondent, v. The New York Life Insurance Company, Appellant

Thomas M. Stokes, Respondent, v. The New York Life Insurance Company, Appellant. Second Department, March 22, 1906. Negligence — Labor Law, sections 18 and 19, construed — scaffold used daily for washing ceilings not within meaning of said sections — erroneous charge. A scaffold ór platform on horses, used daily by janitors and their help for washing ceilings, is not a scaffold within the meaning of sections 18 and 19 of the Labor Law, and it is error to charge in effect that said statute makes the master liable for the negligence of his contractor or servants in building the same. Appeal by the defendant, The New York Life Insurance Company, from a judgment of the Supreme Court in favor of the piaintiffi, entered in the office of the" clerk of the county of Kings on the 15th day of February, 1905, upon the verdict of a jury for $325, and also from an Order entered in. said clerk’s office on the 28th day of February, 1905,’ denying the defendant’s motion for .a new trial made Upon the rhimites. The. action was' for personal injuries from negligence, The déféndant owns a large building and keeps; a corps of men continually employed to clean it and do the ordinary repairs to it from day to day. These men or some of them, including 'the plaintiff, were instructed- by the . janitor to wash the ceiling of one of the rooms'. To do this they set up wooden horses and put the necessary beams .and planks on -top of them to make a platform or scaffold -twelve feet high to work on. These things, and tíre like, were all kept on-hand in the building by the defendant for daily use. The plaintiff testified that he did not help put up the platform, and the judge charged that if he did he could not recover. The plaintiff fell from the platform while at work washing' the ceiling. He testified that one of the planks tilted or tipped sidewise under bis weight, and that the cause was that it was warped. Frank Verner Johnson [E. Clyde Sherwood with him on the brief], for the appellant. Rufus M. Williams, for the respondent. [MAJORITY — Gaynor, J.:] Gaynor, J.: The learned trial judge charged the jury that the provisions of the Labor Law (Laws of 1897, chap. 415, § 18 ; Id. § 19, as amd. by Laws of 1899, chap. 192), in effect making the master liable for the negligence. óf his contractor or servants in building -scaffolds in. certain specified cases, applied to this case. In this he was -in error according to á case afterwards decided (Schapp v. Bloomer, 181 N. Y. 125). This case is not distinguishable from that. The scaffold or platform on.horses on which the plaintiff was working, and which was set up by his fellow-workmen, was not within the meaning of the labor statute,’but a simplez affair used every day to wash walls and ceilings by janitors and their helpi It did not present the possibilities of danger contemplated by the statute. As there were plenty of planks furnished and on hand, the workmen had no need to use the warped one (if, indeed, it was warped); bnt this does n'ot need to be considered now. The judgment and order should be reversed. Woodward, Jenks, Hooker and Rich, JJ., concurred. Judgment and order reversed and new trial granted, costs to abide the event.