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Riley v. McNulty

100 N.Y.S. 985 Court N.Y. App. Div. Decision date 1906-11-16 English

Delivered by GAYNOR, J.

Contents

Majority

p. 985
(115 App. Div. 650)
RILEY v. McNULTY et al.
(Supreme Court, Appellate Division, Second Department.
November 16, 1906.)

Headnote

Master and Servant—Injury to Servant—Defective Scaffold—Negligence —Complaint—Sufficiency.
A complaint in an action for injuries received by an employe in consequence of the fail of a scaffold erected for him to work on, which alleges that the scaffold was made of unsafe material and was unsafely constructed, is sufficient, without pleading Labor Law, Laws 1897, p. 467, c. 415, § 18; forbidding the furnishing of an unsafe scaffold; the liability of the employer not being created or enlarged by the statute, but it only making the negligence of fellow servants in the making of a scaffold the negligence of the master.
[Ed. Note.—For cases in point, see vol. 34, Cent. Dig. Master and Servant, §§ 816-824.]
Appeal from Municipal Court of New York.
Action by William H. Riley against Patrick H. McNulty and another. From a judgment of the Municipal Court for plaintiff, defendants appeal. Affirmed.
Argued before HIRSCHBERG, P. J., and WOODWARD, RICH, MILLER, and GAYNOR, JJ.
Theodore H. Lord, for appellants.
Frank A. Acer, for respondent.

The plaintiff was hurt by the fall of a scaffold erected by the defendant, his employer, for the plaintiff to work on. Counsel for defendant argues that the complaint was insufficient to enable the plaintiff to recover for the furnishing of an unsafe scaffold, which section 18 of the labor law (Laws 1897, p. 467, c. 415) forbids, because it did not plead the said statute and allege a violation of it. It was not necessary to do so. The complaint alleged that the scaffold was of unsafe material and also unsafely constructed, and that sufficed. That the liability o,f the employer is created or enlarged by statute does not make the action a statutory one. The effect of the statute is to make the negligence of fellow servants in the making of a scaffold that of the master, and thus enable the negligence of the master to be proved by evidence which formerly did not prove it. It is enough now as formerly for the complaint to allege the negligence of the master. The difference is that evidence which formerly did not prove his negligence now does. Harris v. Baltimore Machine & Elevator Co., 112 App Div. 389 , 98 N. Y. Supp. 440 .

The judgment should be affirmed.

Judgment oí the Municipal Court affirmed, with costs. All concur.

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