about ten inches wide; the beam itself about a foot in depth. The concrete floor to fill this panel is laid or poured upon a "form." In order to construct this "form" a board is hung by wires running around the beam and brought flat to the lower flange of the beam. A small upright is then nailed on the inner (namely, the panel) side of this board. Another board is then nailed to the top of this small upright standing one. Then cross joists, two by four, are nailed by a single heavy nail to the bottom of the last-named board. The joists extend across the panel. This construction is merely temporary to hold the joists in place. An iron strap is then passed under either end of these joists and clamped over the top flange of the iron beams. By this means the joists are held firmly in place. Planks are then laid on top of the joists and nailed into place forming a sort of flooring at a point where in the completed building the ceiling would be. The concrete is then laid upon this plank flooring and made level with the upper flange and allowed to dry.

Plaintiff, who had worked on this building for some time, was familiar with this mode of construction, and had been warned by his foreman not to step upon these "forms." He was bringing a plank up from a lower floor to pass to his foreman on the eighth floor. He left the stairway on the seventh floor and walked to the second panel on the flange of the iron beams, and, when he had reached a point several feet along the flange of the beam that formed the side of this panel, he found the flange to be obstructed by a pile of boards laid on it. He told apparently contradictory stories as to the condition of the "form on this panel, i. e., that it consisted of only the two by four joists standing up on edge; and that these joists had already been covered by the planks. He testified that at this point he called to some one in charge of defendant's workmen to take away the planks, but that this foreman or superintendent then told him to move along or something to that effect, and added, that he should or might step upon the "form," He started to pass the plank up to his foreman on the next floor (the eighth floor being at that time entirely open in that vicinity), and to do so stepped upon the form" which thereupon gave way in whole or in part, precipitating him to the floor of the completed sixth floor. There is no contradiction of the fact that the two by four joists of this "form" were at that time not held by the iron straps around the girders, but were merely nailed to the planks which I have described; and it is also conceded that in that condition the joists will bear no serious or substantial weight.

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The first point, therefore, to be determined on this appeal is whether the construction and circumstances revealed by this record warrant the application of section 18 of the Labor Law. I have no doubt that they do not. The Court of Appeals bas pointed out in Caddy v. Interborough R. T. Co., 195 N. Y. 415 (at pp. 421-424), the great difficulty of attempting to define a scaffold, but however great may be the difficulty of formulating an adequate definition, it will, I think, be universally conceded that the principal, if not the exclusive, function of a scaffold used in construction with the erection or alteration of a building or "structure" is to support in a convenient position the workmen engaged in the construction either while they are working in a fixed position or possibly even while they are passing to and

fro in the course of the work. The "form" which gave way below the plaintiff's weight in the case at bar was not intended, designed or constructed for the purpose of supporting a workman in any event or on any occasion. It was used and intended to be used exclusively as the framework to contain and hold while hardening a section of concrete which when "set" became part of a floor. Even if the defendant or one of its representatives having adequate authority either permitted or authorized persons occasionally to step upon or pass over this "form," while it might under appropriate circumstances be held for negligence in that regard, that would not change the character of the construction into a scaffold. This analysis of its function and its utter lack of likeness to what we commonly understand to be a scaffold is emphasized by the fact that, as testified to by the plaintiff, the top of the joists, even if covered with planks upon which the plaintiff stepped, was some ten or twelve inches below the level of the flange on which he was walking and which would form the final level of the completed floor. In other words, if the floor of a building constructed as the one in the case at bar were completely equipped with these forms it would consist of a series of rectangular depressions fourteen by six and a half feet in length and width, respectively, and ten inches to a foot in depth. These depressed spaces, it seems to me, may far more accurately be denominated "pits" than scaffolds.

Plaintiff's counsel appreciates the great discrepancy between the scaffold designed by the law and the construction involved in the case at bar, and realizes the significance of Haughey v. Thatcher, 89 App. Div. 375, in which a somewhat similar erection, spoken of as a temporary or false arch," was held by a unanimous court not to be a scaffold. He concedes that this case has never been overruled or adversely criticised; but endeavors to avoid its effect by claiming that it must "yield to later authority," whereby he means, for example, as was said by the Court of Appeals in Bohnhoff v. Fischer, 210 N. Y. 172, that "the said statute is to be liberally construed to accomplish its beneficent purpose." But, however great our sympathy with an injured workman and however great our desire to construe a statute liberally," the law cannot by any device be made to cover an occurrence and set of circumstances or a structure which by its terms is manifestly excluded from its operation.

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3. CONTRACTOR'S USE OF JOISTS

The owner of a building under construction, having agreed with the contractor to place the floor and ceiling joists as the work progressed, was held by the Appellate Division not to be liable to an employee of the contractor who received injuries on account of using the joists as a scaffold. The owner had not authorized the use of the floor as a scaffold, and the fact that he interposed no objection to its use by the contractor's employees did not render him liable under section 18. That liability rested upon the contractor alone.

SMITH V. RUSSELL & NORTHROP, 171 App. Div. 821 (March 8, 1916), in part. There can be no reasonable doubt that it was incumbent upon the defendant Russell [the contractor] 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 owner]. 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 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 Northrup 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.

4. HEIGHT AS DETERMINING FACTOR

The provisions of section 18 of the Labor Law forbid the furnishing of unsafe scaffolding "in the erection, repairing, altering or painting of a house, building or structure." In the following decision rendered by the Court of Appeals it was held that "two horses about three and one-half feet high with two planks laid thereon" constituted a scaffold. While distinguishing this case from that of Schaap v. Bloomer, discussed at length in the opinion reported, there is an intimation in the separate, concurring opinion of MeLaughlin, J., that the statement in the latter case as to what constitutes a scaffold has been overruled by subsequent decisions. The opinion, and the concurring memorandum. follows:

STORRIER V. MOSIER & SUMMERS, 221 N. Y. 237 (July 11, 1917). CUDDEBACK, J. The action is brought by the plaintiff to recover damages for personal injuries, occasioned, as he charges, by the negligence of the defendant.

The plaintiff was a plasterer employed by the defendant in the construction of a building. The plasterers had finished with one of the rooms in the building, and at the time of the accident the plaintiff with his son, who is also a plasterer, was engaged in filling up the holes left in the walls for the plumbers and electricians to do their work. Some of the holes were near the ceiling of the room, and to reach them it was necessary to have a scaffold, platform or other similar structure for the plasterers to stand upon. Accordingly, the defendant's foreman furnished and placed in position two wooden horses about three and one-half feet high with two planks laid thereon. We must assume that the plaintiff took no part in placing the horses and planks. The plaintiff and his son got upon the structure thus provided and went to work. The son finished work first and he jumped to the floor. In doing so, he in some way overthrew the scaffold and the plaintiff fell, striking his shoulder and so received injuries for which he has recovered in this action. The accident happened June 12, 1912, and the action was brought under section 18 of the Labor Law, which provides, in substance, that a person employing another to perform labor in erecting or repairing a building, shall not furnish him with unsafe scaffolding.

The defendant, the appellant, argues that the structure which fell was not a scaffold within the meaning of section 18 of the Labor Law, and that whether it was or not is the only question in the case.

The plaintiff argues not only that the case is within the Labor Law, but also that the judgment can be sustained under the Employers' Liability Act which requires a safe place to work, or under the common-law liability of the defendant. Whether it can or not, in the view I take of the case is unimportant, because I have reached the conclusion that the structure was a scaffold.

The defendant in support of the argument that the structure was not a scaffold, cites Williams v, First National Bank of Utica (118 App. Div. 555, 559) and Schapp v. Bloomer (181 N. Y. 125, 127). In Williams v. First National Bank the plaintiff was injured while putting a casing on a window frame. He was standing at the time on a plank, resting on two wooden horses about eight or ten feet above the floor. The plank broke, because of some defect therein. The Appellate Division held that the structure was not a scaffold within the meaning of section 18 of the Labor Law. But the distinguishing feature of that case is that the plank and horses were put in place by the plaintiff and his co-workers, and if the plank that broke was defective, there were other planks upon the premises which could have been used by the workmen.

Schapp v. Bloomer (supra) was a case where the plaintiff was hanging certain shafting from the ceiling of a factory building, and he stood upon planks resting partly on wooden horses and partly on large rolls of paper. This structure fell to the floor and the plaintiff was injured. There is some language in the opinion of the court which supports the plaintiff's theory in the case under consideration; but the main thing decided was that the statute imposes liability only when the work is to be done "in the erection, repairing, altering or painting of a house, building or structure." It was held that the statute limits the scaffolds, for a defect in which the master is liable, to those constructed "in the erection, repairing, altering or painting of a house, building or structure," and it was further held that the work of attaching shafting in the factory was not within the limitation of the

statute.

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I do not think the case falls within the principle of either of these decisions, but rather is controlled by the decision of this court in Caddy v. Interborough Rapid Transit Co. (195 N. Y. 415, 423). Judge WERNER in that case speaks of the impossibility of defining the word scaffold, and continues: The inherent difficulties of the subject are such as to finally compel us to work out each ease upon its own peculiar facts in the light of the manifest purpose of the legislature to secure greater protection to the employee, and to impose upon the employer directly a personal obligation which under the common law he had the right to delegate to competent employees." In the Caddy case the structure defined as a scaffold consisted of "painters horses" constructed like a ladder with rungs about twelve inches apart upon which were placed planks about eight feet above the floor.

Judge WERNER in his opinion in the Caddy case cites many Appellate Division decisions which have given the language of the statute the broad interpretation contended for here, and go far to sustain the judgment appealed from. Counsel for the appellant contends that the height of the structure above the floor, which was only three feet and six inches, indicates that it was not a scaffold within the meaning of the statute. Clearly, the