#### George McCormick, Respondent, *v.*The ThompsonStarrett Company, Appellant.

(Supreme Court, Appellate Term, First Department,

April, 1913.)

Labor Law, § 18 — what not a “scaffold” within — evidence — negligence.

A plank, on which plaintiff stood when it tilted and he was thrown and injured, and which had been placed by defendant’s foreman across a coal car less than four feet high, to enable plaintiff to drill holes in the wall of a building for the purpose of installing a coal conveyer, in the basement, is not a *“*scaffold ” within the meaning of section 18 of the Labor Law.

Appeal by the defendant from a judgment of the Municipal Court of the city of New York, borough of *225Manhattan, eighth district, rendered in favor of the plaintiff.

James J. Mahoney (Adolph F. Bruenner, of counsel), for appellant.

William S. O’Connell (Murray Gf. Jenkins, on the brief), for respondent.

Lehman, J.

The plaintiff was drilling some holes in the wall of the Hotel McAlpin for the purpose of installing a coal conveyer in the basement. For this purpose the defendant’s foreman had placed a plank across a coal car, and while plaintiff was standing on this plank it tilted and the plaintiff was thrown down and injured. The question presented by this appeal is whether the plank in question was a scaffold within the meaning of section 18 of the Labor Law. The height of the coal car was according to the plaintiff about six or seven feet, but the plaintiff was not at all certain of the height, and defendant’s foreman produced as a witness by the plaintiff testified that it was less than four feet in height. In the recent case of Caddy v. Interborough Rapid Transit Co., 195 N. Y. 415, the Court of Appeals has stated that there is doubt and uncertainty as to what kind of an appliance the legislature meant by the word scaffold. Undoubtedly a broad and practical view of the statute should be taken in order to furnish the workmen with the additional protection which the legislature sought to give, but since the statute has provided that the employer shall be liable for defects not in all scaffolding but only in scaffolding used in the erection, alteration and repairing of a structure, it is evident that the legislature had in mind scaffolding which if unsafe would subject a workman to obvious danger in *226case of a fall. Schapp v. Bloomer, 181 N. Y. 125. In that case the Court of Appeals held that ordinary staging put up in a room from four to six feet above the floor to facilitate the placing of fixtures was not scaffolding within the meaning of the statute. It is true that the question of what constitutes scaffolding within the intent of the legislature must in each case be determined on its peculiar facts, but applying the reasoning of the court in Schaff v. Bloomer to these facts it seems to me we are bound to reach the same conclusion. As in that case the plaintiff was engaged in the work of installing fixtures inside of a room; the *“*scaffold ” consisted only of a board laid across a car. The height was only four to six feet. Moreover the appliance was so simple that only by a stretch of the meaning of the word could it be denominated as a scaffold.

It follows that the judgment should be reversed, with costs, and the complaint dismissed, with costs.

Gebard and Delany, JJ., concur.

Judgment reversed, with costs, and complaint dismissed, with costs.