Opinion
December 4, 1939.
In an action for damages for personal injuries sustained by plaintiff who, while engaged in his work as a carpenter, fell from a fourth-story brick wall of a building under construction, judgment against appellant 143 Linden Boulevard Corporation reversed on the law and the facts and a new trial granted, with costs to abide the event. Plaintiff may be entitled to go to the jury as against the owner of the building on the theory that the owner was exercising such supervision over the work as to be in effect a general contractor, owing to the employees of other contractors the duty to guard the place of work against perils unknown to them. ( Caspersen v. LaSala Bros., 253 N.Y. 491.) The trial court erred, however, in permitting the jury to determine whether the owner should have provided scaffolding under section 240 Lab. of the Labor Law. Appellant was not "a person employing or directing another to perform labor" within the meaning of that section. ( Iacono v. Frank Frank Contracting Co., Inc., 259 N.Y. 377; Sweeney v. Spring Products Corp., 257 App. Div. 104.) Even if appellant had been such a person, there was no evidence in this record as to the utility or feasibility of scaffolding under the circumstances existing, and a verdict based on the absence of a scaffold would have been purely speculative.
Johnston, Adel, Taylor and Close, JJ., concur; Lazansky, P.J., dissents in part with the following memorandum:
The testimony shows that there was no negligence on the part of the owner. There was nothing to indicate that on inspection any defect would have been disclosed. Furthermore, the jury found a verdict for defendant contractors, the bricklayers. If they were not negligent, then defendant owner was not. The judgment should be reversed and complaint dismissed.