Opinion
March 8, 1916.
A.D. C.N. Peake [ A.D. Peake of counsel], for the appellant Russell.
Fancher Fancher [ A.G. Patterson of counsel], for the appellant Northrop.
Arthur E. Conner, for the respondent.
The plaintiff was employed by the defendant Russell and was injured on July 7, 1913. Russell had entered into a contract in writing with the defendant Northrop by the terms of which Russell was to do the excavating, construct the foundation and erect the walls of the two-story theatre building where the accident out of which this action arose occurred. The defendant Northrop was the owner of the premises, and he agreed to furnish and place in the walls as the work progressed all doors and window frames, as per plan; also floor and ceiling joist. The building had reached a stage in the construction where the second floor joist were put into place by the defendant Northrop, and the employees of the latter appear to have been at work on the interior. The defendant Russell, as appears from his own testimony, was making use of these floor joist for the purpose of storing the concrete blocks of which the outside walls were being constructed, because he could perform his contract cheaper by so doing than by erecting scaffolding upon the outside of the building and taking them up on the outside. While a quantity of this material was being placed and moved about the floor upon the joist which the defendant Northrop had placed the floor collapsed and the plaintiff Smith was more or less seriously injured.
There can be no reasonable doubt that it was incumbent upon the defendant Russell to supply the necessary scaffoldings and appliances for the construction of the outside walls of this building, and that no such duty rested upon the defendant Northrop. The latter had merely agreed to "furnish and place in walls as the work progresses, all door and window frames, as per plan; also floor and ceiling joist," and having done these things in a proper manner no further obligation rested upon him. The suggestion that this contract can be read to impose the duty of furnishing scaffoldings to the defendant Russell, or that the defendant Northrop undertook to furnish such scaffoldings, is wholly without force. He merely undertook to furnish and place the floor and ceiling joist in the construction of this building; he said in effect that he would place in the building, as the work progressed, and as required by the plans, the floor and ceiling joist — he would put in such floor and ceiling joist as the plans called for, or such as were necessary to support the floors and ceilings of the building under construction. To undertake to make this cover the furnishing of scaffolding for the construction of the outside walls of the building is absurd. He had performed his entire duty in the premises when he had furnished and placed the joist necessary to support the floors of the building, and the mere fact that he may not have raised objections to the defendant Russell using the floor in the work of construction does not impose upon him the duties and obligations fixed by section 18 of the Labor Law (Consol. Laws, chap. 31 [Laws of 1909, chap. 36], as amd. by Laws of 1911, chap. 693) in respect to the erection of scaffoldings. The floor joist were put in place by the defendant Northrop for the sole purpose, so far as he is concerned, of performing his part of the contract, which made no suggestion of scaffolding, but of floors for the building, and there is no evidence whatever that the joist were not strong enough, or that they were not properly placed, to accomplish all of the purposes for which Northrop had designed them. If defendant Russell saw fit to make use of these floor joist for scaffolding, it was clearly his duty to determine whether they were proper for this purpose. Defendant Northrop, by placing floor joist under his contract with Russell, did not warrant their use for the purposes of defendant Russell's contract; he assumed no other liability than their use as floors in the character of building then under construction, and it was error, therefore, for the learned trial court to refuse to charge that if the jury find the defendant Russell's use of this structure was unreasonable defendant Northrop is not liable. Russell knew all about the building. Northrop had no obligation to construct a scaffolding; he had only undertaken to place the floor joist, and when these joist were put to any other use than that of supporting the floor of this building, the question of the reasonableness of that use was for the jury, and it was the duty of the court to so charge upon the defendant Northrop's request. ( Duhme v. Hamburg-American Packet Co., 184 N.Y. 404; Lorenzo v. Faillace, 132 App. Div. 103. )
We are fully persuaded that the defendant Russell failed in the discharge of his duty to the plaintiff, and that as to him the verdict was proper, and the judgment and order should be affirmed; but in the case of the defendant Northrop there was neither an obligation to construct a scaffolding nor an invitation to use the floor joist as such scaffolding, and the error of the court, in refusing to charge as requested, demands the reversal of the judgment and order as to him.
The judgment and order should be affirmed as to defendant Russell, and as to defendant Northrop should be reversed.
All concurred.
Judgment and order affirmed, with costs, as to defendant Russell; and as to defendant Northrop judgment and order reversed and new trial granted, with costs to appellant to abide event.