#### Ernest Kuss, Respondent, *v.*Isaac Freid et al., Appellants.

(City Court of New York, General Term,

October, 1900.)

Negligence — In erecting a scaffold, required by law to be safe, employees are not fellow servants.

The duty imposed by statute (L. 1897, ch. 415, § 18) upon an employer of furnishing safe scaffolding to his employee is personal, and he cannot escape liability to an employee, injured by the fall of an insufficient scaffolding, by contending that it was erected by fellow servants, as in such work the latter represent the master alone.

Appeal from a judgment in favor of the plaintiff, entered upon a verdict in an action to recover damages for personal injuries caused by the alleged negligence of the defendants.

*629Nadal, Smyth, Carrere & Trafford (L. Sidney Carrere, of counsel), for appellants.

Louis Steckler, for respondent.

Fitzsimons, Ch. J.

On May 31, 1899, the plaintiff was employed by the defendants to do certain painting in 81 Walker street, in the city of New York. To do the work assigned him, he had to ascend to a scaffold erected by another employee of the defendants, who had charge of said work for the defendants. The plaintiff had nothing to do with the erection, or placing, of said scaffold; it was apparently safe and ready for the uses for which it was erected. Upon the plaintiff’s arrival on said day, he went to work thereon. While in that occupation the scaffold fell and plaintiff with it; he was severely injured, and upon the trial recovered a judgment for $1,000. The scaffold in question was furnished by the defendants and erected by their servant or agent, to enable the plaintiff to do his work. If the defendants’ servant erected the same in a careless and improvident manner, then the defendants failed to perform the duty required of them by section 18 of chapter 415 of the Laws of 1891, which reads as follows: “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.” This law compelled the defendants, when they undertook to erect the scaffold in question, to do so in a careful and prudent manner. It should have been so erected as to safely bear the weight of any man or number of men, who had cause to be upon the same for the purpose of doing the work assigned him or them by defendants or their agent. The fact that the man or men who erected, the same also were employed upon the same work, does not make him or them the fellow servants of the plaintiff. So far as the work of erecting the scaffold in question is concerned, he or they represented the defendants, and for his or their negligent work the defendants are responsible. In our opinion the submitted case *630clearly shows that the injuries in question were caused entirely because of the negligence of the defendants, and that the plaintiff was not guilty of contributory negligence.

The verdict was just and reasonable, and as no errors were committed the judgment must.be affirmed, with costs.

Conlan and Hascall, JJ., concur.

Judgment affirmed, with costs.