#### Samuel Cohn, Appellant, *v.*Isaac Sekosky, Respondent.

Second Department,

May 9, 1913.

Master and servant—negligence — injury to employee of sub-contractor by fall of scaffold used as a hoist — evidence—liability of contractor for safety of scaffold—question for jury.

In an action for injuries sustained by the falling of a scaffold which the plaintiff was pulling up as a hoist incident to work about a house, the defendant admitted that he was a contractor employed to place a lintel on the house; that he had engaged a mason to do the work, and that he had furnished certain ropes, scaffolding, pulleys, etc., but denied that they were furnished for the purpose for which they were used by the plaintiff or the mason by whom he was employed.

Evidence examined, and *held,*that the issues for the jury were erroneously limited to the question of the status of the mason as a sub-contractor; that, even if the jury determined that the mason was a sub-contractor, the question as to whether or not the defendant was liable for the safety of the scaffold was a question for the jury.

*197Appeal by the plaintiff, Samuel Cohn, 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 3d day of June, 1912, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 28th day of May, 1912, denying the plaintiff’s motion for a new trial made upon the minutes.

*Henry Hirschberg [L. F. Fish*with him on the brief], for the appellant.

*Isaac Sekoshy,*respondent, in person.

Jenks, P. J.:

The action is for negligence in the relation of master and servant. The appeal is by the plaintiff from a judgment entered upon a verdict against him. The plaintiff was injured by fall of a scaffold which he was pulling up as a hoist incident to work about a certain house. The defendant admitted that he was a contractor for the performance of certain work on that house, and as such contractor had charge, direction and control of the said work. He further pleaded that the injuries, if any, were caused by the plaintiff’s negligence, and if by the negligence of any other, then by the negligence of a sub-contractor, and that the ropes for the scaffolding were furnished by a fully competent and experienced sub-contractor who, on information and belief, was careful and prudent in his business. The plaintiff testified that Polakoff asked plaintiff if he wished to help him, and said that he had a job working for the defendant; that thereupon plaintiff went to work and that Polakoff informed plaintiff that he (Polakoff) was working for the defendant. The defendant testifies that he had the work for placing a lintel on the premises; that he ordered the lintel from the factory and took a mason, Polakoff, to do the work, and he read in evidence a contract with Polakoff for such work.

The learned court •under exception charged the following request of the defendant: “If the jury believes that Polakoff was a sub-contractor, and that he had contracted to place that lintel, even if the defendant was present at the time that it was placed, he is not liable.” The defendant in his answer “ admits that he caused to be furnished certain ropes, scaffolding, pul*198leys, etc., but he denies that the same were furnished for the purpose and usage that the same were put to by the plaintiff or his employer and that the same were rotten and of insufficient strength for the usage intended for same.” The plaintiff testifies that when he came to the premises he saw a scaffold lying on the ground and a stone was on the scaffold; that he asked Polakoff, “Where is your boss ?” and that then the defendant came along. The plaintiff then said, “ I can’t pull that myself, you will have to have a third man to help in pulling that up,” and that the defendant helped pull. The defendant said to him, “ The rope is strong enough to pull up,” and told him to pull. When they had pulled about 15 or 20 feet the rope broke. And theretofore he had asked the defendant if he was the boss, whereupon the defendant answered, “Yes.” The defendant denied that he was present, admitted that he furnished the rope for the scaffold and had borrowed the scaffold from a painter, but denied that he had ever authorized Polakoff to use the scaffold for the purpose of a hoist.

I think, even if the jury determined that Polakoff was a subcontractor for the lintel, that under the rule of *Quigley*v. *Thatcher*(207 N. Y. 66) the testimony presented as a question of fact for the jury whether the defendant was liable for the safety of the scaffold. We do not decide that upon the evidence a verdict for either party would have been free from interference either by the trial court or by the appellate court. We decide only that the issue for the jury was limited erroneously to the question of the status of Polakoff as a sub-contractor for the lintel work.

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

Burr, Rich and Stapleton, JJ., concurred.

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