#### Clemens Keyser, Respondent, *v.*Reid-Palmer Construction Company, Impleaded, Etc., Appellant.

(Supreme Court, Appellate Term, First Department,

December, 1912.)

Labor Law — collapse of scaffold — “ ways, works, machinery or plant ” —‘ injury to employee of sub-contractor — non-liability of general contractor.

Where plaintiff, an employee of defendant’s sub-contractor, was injured by the collapse of a scaffold on which he was standing while at work nailing furring strips to a ceiling, and it appears that the scaffold consisted of planks which, though owned by defendant, were with plaintiff’s assistance selected and put in place on “ horses ” and was portable, and the accident was due to the splitting of a brace where it was nailed to the “ horse,” the scaffold came within the statutory definition of “ ways, works, machinery or plant” and was the property of the sub-contractor and not of the defendant contractor who did not build it, nor cause it to be built, nor select the material from which it was built, nor use it in its work.

*394Appeal by defendant from a judgment of the City Court of the city of ¡New York, entered on a verdict in plaintiff’s favor and from an order denying defendant’s motion for a new trial.

Amos H. Stephens (E. Clyde Sherwood and William B. Davis, of counsel), for appellant.

Morris Weiss (L. E. Eish, of counsel), for respondent.

Hotchkiss, J.

This action was brought under section 200 of the employer’s liability clause of the Labor Law, as amended by chapter 352, Laws of 1910. While plaintiff was standing on a scaffold nailing furring strips to the ceiling, the scaffold collapsed, throwing him to the floor, and causing him serious injury. The scaffold was a portable affair consisting of planks resting upon “ horses.” The only witness who pretended to speak positively as to the cause of the accident, swore that it was due to the splitting of a brace on one of the “ horses ” at the place where the brace was nailed to the “ horse.” The appellant was the general contractor for the alterations and additions which were being made to the building. Plaintiff was in the employ of one Isele, a subcontractor under defendant. The scaffold was one of several used for the same general purpose, all of which were built by Isele’s men. Plaintiff had helped to build one or more of the others, but the only part he took in the construction of this particular scaffold that fell was to assist in selecting the planks and putting them in place. Since the decision in Caddy v. Interborough Rapid Transit Co., 195 N. Y. 415, it cannot be doubted that this scaffold comes within the definition of “ways, works, machinery or plant.” Whether the case comes within the doctrine of Kimmer v. Weber, 151 N. Y. 417, and Gombert v. McKay, 201 id. 27, it is unnecessary to determine.

If the judgment is to be sustained, it must be upon one or both of two theories:

(1) That the scaffold was “ the property of the employer, or * * * furnished by him,” or;

*395(2) That appellant directed the construction of the scaffold, and selected the material of which it was made. There is no evidence of such ownership as the statute contemplates. The proof was that appellant owned the planks. The pieces of which the remainder of the scaffold was composed were picked up from material lying about, but whether or not such material belonged to appellant did not appear, nor, in my opinion, was the fact of any such ownership material.

It is not contended that the appellant was under any obligation to furnish the scaffold or that it was used as an instrument in work which it was performing. Assuming that appellant was the owner of the congeries of material of which the scaffold was composed, it might be said that legally, in a certain sense, it was the owner of the completed structure. But, it is clear that for the purposes of the work in hand, and the uses to which the scaffold was devoted, it was *qua*scaffold neither its *“*property ” nor was it “ furnished ” by it. The fact that appellant loaned to Isele, its sub-contractor, or permitted him or his workmen to use its material for the construction of the scaffold, did not cast upon it any duty or responsibility with respect to the structure resulting from the use of such material. As a scaffold, the structure was Isele’s, and his only. Appellant did not build it or cause it to be built, nor did it select the materials from which it was built, or use it in its work. So far as the work or the use which was made of the scaffold was concerned, appellant was as much of a stranger as it would have been had it borne no relation to the building.

Ror did the evidence justify the conclusion that appellant directed the construction of the scaffold or selected the materials composing the same. The only evidence connecting defendant with the direction of the work tended to show that'when Isele’s men were about to shift some of the other scaffolds to a point under the portion of the ceiling where the accident occurred, appellant’s superintendent told Isele’s foreman to leave them where they were for use by the plasterers, who were to follow, and to build another scaffold, which they proceeded to do; the scaffold so constructed being the one that fell. One of plaintiff’s witnesses testified that *396appellant’s superintendent also told Isele’s foreman to use the “ material that was laying on the floor.” This was far from sufficient to cast upon appellant responsibility for the quality and character of the materials selected by the foreman or the manner in which they were put together in making the scaffold. See Silverman v. Binder, 130 App. Div. 581; Kaplan v. Friedman Construction Co., 148 id. 14; Lipschitz v. Koeppel, 144 id. 352.

The judgment should be reversed and a new trial ordered,' with costs to appellant to abide the event. .

Lehman and Page, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.