#### Adolphus Pelow, Respondent, *v.*Oswego Construction Company, Appellant.

Fourth Department,

April 4, 1914.

Master and servant — negligence—Labor Law, section 200, as amended in 1910 —liability of master for negligence of foreman.

Since the amendment of section 300 of the Labor Law by chapter 353 of the Laws of 1910, a master is liable for the injury to a servant caused by the negligence of any person intrusted with authority, provided the servant himself is free from contributory negligence.

Hence, where a superintendent assured an employee, who was standing upon boards placed in an upright position, that he would safely hold them in that position, but failed to do so, the master is liable for injuries caused by their fall.

Robson, J.,- dissented.

Appeal by the defendant, Oswego Construction Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 22d day of October, 1913, upon the verdict of a jury for $3,500, and also from an order entered in said clerk’s office on the 23d day of October, 1913, denying defendant’s motion for a new trial made upon the minutes.

*A. H. Cowie,*for the appellant.

*Thomas Woods,*for the respondent.

Kruse, P. J.:

Two men in defendant’s employ were engaged in erecting forms for concrete construction. One of them was hurt through the carelessness of the ether. The question is whether the defendant employer is liable to the injured man for such carelessness.

The careless man, who was acting as foreman, directed the plaintiff, who was a carpenter, to stand upon the top of a “key” made of twelve-inch boards nailed together in the form of a trough, some eight or ten feet long, which was standing upright, leaning against the concrete forms, and assured him that he would hold the ‘ ‘ key ” safely, but through a lack of attention and care he failed to do so, it fell, and the plaintiff *841was precipitated to the ground and injured. The man through whose 'carelessness the accident resulted had been intrusted by the employer with authority to direct the injured man in doing the work.

Under the provisions of section 200 of the Labor Law, as amended in 1910, an employer is made liable for personal injuries caused to an employee, who is himself in the exercise of due care and diligence at the time, by reason of the negligence of any person in the service of the employer intrusted with any superintendence, or by reason of the negligence of any person intrusted with authority to direct, control or command any employee in the performance of the duty of such employee. (Consol. Laws, chap. 31 [Laws of 1909, chap. 36], § 200, as amd. by Laws of 1910, chap. 352.)

The defendant contends that this provision covers negligent superintendence only. We think the liability of the defendant is not thus limited. We are of the opinion that under the amendment of 1910 the defendant is liable for the negligence of the foreman in failing to hold the ‘c key ” firmly and securely. This view is supported by the decisions in *Famborille*v. *A., G. & P. Co.*(155 App. Div. 833) and *Svendsen*v. *McWilliams, Incorporated*(157 id. 474), and the learned counsel for appellant seems to so concede. The question has been very elaborately discussed in those decisions and we deem it unnecessary to add anything to what is there said. It is sufficient to say that we agree with the reasoning of those cases.

We think the case was correctly submitted to the jury and that the judgment and order appealed from should be affirmed, with costs.

All concurred, except Robson, J., who dissented.

Judgment and order affirmed, with costs.