not be delegated. The fact that the plaintiff and Stein actually put the structure together does not bar a recovery (Warren v. Post & McCord, supra.) It seems to me error on the part of the trial court to dismiss the complaint. The question of assumption of risk was for the jury. (Grady v. National Conduit & Cable Co., 153 App. Div. 401.) The trial court relied upon Schapp v. Bloomer (181 N. Y. 125); Fallon v. Mertz (110 App. Div. 755) and Hammond v. Union Bag & Paper Co. (151 id. 776). The Schapp case does not apply, for there it was held that the structure in that case was not a "scaffolding" within the meaning of section 18 of the Labor Law, and here, as I think, the structure was clearly a "scaffolding" within the meaning of the statute. The Fallon case arose from an accident which happened in the State of Connecticut, to which section 18 of our statute did not apply. In the Hammond case a proper scaffold had been furnished by the master; the plaintiff, without any orders to do so, took it apart and reassembled it according to his own ideas, and in doing so, neglected to assemble it properly as it had been assembled before he interfered with it.

The judgment and order are reversed and a new trial granted, costs to abide the event.

8. KNOWLEDGE OF DEFECT AS AFFECTING RECOVERY

Where a statute is violated by the employer, the risk of injury thereby is not assumed by the employee although he has knowledge of the danger. So held in a case where an injury was caused by a defect in a scaffold through a violation of the Labor Law, wherein the court said:

CHRISTENSEN V. MORSE DRY DOCK & REPAIR Co., 179 App. Div. 825 (Oct. 26, 1917), in part.

It is conceded that where a statute affirmatively imposes upon an employer a specific duty in express terms, the risk occasioned by the failure of the employer to comply with the statute is not assumed by the employee although he has knowledge of the failure. (Fitzwater v. Warren, 206 N. Y. 355; Welch v. Waterbury Co., Id. 522; 159 App. Div. 509; affd., 217 N. Y. 604.)

The argument that the plaintiff assumed the risk in this case is based upon an over-subtle distinction. It is the supposed difference between the affirmative duty to guard machinery (Labor Law [Consol. Laws, chap. 31; Laws of 1909, chap. 3611, § 81, as amd, by Laws of 1911, chap. 693.) Public policy is against permitting the master to violate either statutory duty with impunity, even with the assent of the employee. In Wiley v. Solvay Process Co. (215 N. Y. 584) the employer's failure involved was not a violation of a statutory duty expressed either in terms of command or of prohibition. I advise affirmance of the judgment and orders, with costs.

9. "ROPING" NOT SUBSTITUTE FOR BOLTING

Where the statute requires that scaffolds shall have safety rails "properly bolted, secured and braced," such requirement is mandatory and means that the rail shall be rigid and not subject

to play. Thus a painter fell, sustaining a fractured skull because, as the evidence tended to show, the guard rail of the scaffold was roped and allowed play to avoid fire escapes. Reversing a judgment entered on a verdict for the defendant the court said:

CARR V. GOTTSCHALDT, 181 App. Div. 810 (Feb. 8, 1918), in part. I think that upon this record there was no question for the jury whether the master had complied with the statute. I think that this section 18 has a purpose beyond declaration of the common-law obligation of a master. Instead of committing the construction of the guardrail to reasonable care, it prescribes, in further assurance of safety, that the guardrail must be properly bolted, secured and braced. In the nature of things a bolt a strong pinsecures rigidity. Bolting is a specific requirement as distinguished from the general requirement of securing and of bracing. And the statute is not satisfied if bolting when and wherein required, is omitted, no matter how properly the guardrail is secured and braced. The master could not satisfy this specific requirement of the statute by substitution, even though he exercised due care in selection of the substitute. The proof of the violation of the statute in this case was sufficient to establish as matter of law the negligence of the master in furnishing the scaffold. And neither court nor jury had any power of dispensation upon consideration of the care exercised by the master in otherwise securing or bracing this guardrail.

10. FAILURE TO CARRY UP WALL AS RENDERING UNSAFE

BUSH V. CROW, 185 App. Div. 883 (1918), abstract.

In an action under the Employers' Liability Act, and section 18 of the Labor Law relating to scaffolds, the Appellate Division of the First Department reversed a judgment entered on a verdict for $6,068.98 for fatal injuries to plaintiff's intestate, a bricklayer, by reason of a fall alleged to have been caused by an unsafe scaffold. By their verdict the jury determined that the scaffold was unsafe and that plaintiff's intestate was free from the charge of contributory negligence. These findings, the court held, were against the weight of the evidence. The only statement of the case is that found in the dissenting opinion of Shearn, J., the material part of which is as follows:

"The scaffold which was located on the inside of the fourth floor of a building in course of construction, and was an ordinary bricklayer's scaffold for ordinary work, had become unsafe and unfit for the use of the deceased because defendants failed to carry up the westerly wall along with that of the southerly wall, thereby causing the return angle of the westerly wall, at its junction with the southerly wall, to be raised about five feet above his scaffold (while the rest of the westerly wall was six to eight inches below the scaffold),

rendering it impossible to reach over its top and necessitating his reaching through a window opening in the wall in order to anchor his guide line for continuing the erection of the remainder of the westerly wall. The wall was twelve inches thick and the scaffold was two inches from it, so that the deceased had to stoop and reach forward fourteen inches from the edge of the scaffold, and then extend his reach an additional four to eight inches around the outside surface of the wall to the left of the window frame and from two and one-half to eight inches below the level of his feet, in order to shift and fasten his guide line for the next course, which was done by pulling out the anchoring nail and holding it in his left hand while driving it with a hammer in his right hand into the hard mortar joint between bricks in the outer surface of the wall, with nothing to protect him from the open space of four stories beneath. In doing this he lost his balance and fell."

11. HEIGHT AS DETERMINING NECESSITY FOR SAFETY RAIL

The safety rail required by section 18 is to be placed on scaffolds "more than twenty feet from the ground or floor." In the following case, a scaffold was suspended from a building seventyfive feet in height. Plaintiff, and another painter, beginning work with the scaffold near the top of the building, lowered it from time to time as they worked downward. When at a height of from twelve to fifteen feet from the ground, plaintiff fell off and received severe injuries. The scaffold had no safety rail. On a Supreme Court trial, plaintiff secured a verdict for $3,000. Defendant's attorney argued that no rail was required since, at the time of the accident, the scaffold was less than twenty feet from the ground. The Appellate Division unanimously affirmed the judgment, the material part of the opinion being as follows:

COOKE V. MAXWELL, 174 App. Div. 149 (Oct. 6, 1916), in part. Appellant contends that, although during the progress of this work this scaffold had been raised over twenty feet from the ground, defendant was not liable for the absence of a safety rail, if plaintiff's fall was less than twenty feet; that it is the fall and the scaffold's height at that moment that fixes the duty to provide such a guard rail.

Had this scaffold, hanging from an anchorage to this high cornice, been always maintained less than twenty feet from the ground, another question would be presented. But a swinging scaffold suspended at various levels, rising from the ground up to nearly seventy feet, must be within the compass of this statute. The object of a safety rail is to enable the workman to keep his balance so that when absorbed in his work he will not fall through inattention, or by the force of the wind. The courts by construction should not narrow the scope of such a needed protection.

The 1st subdivision of section 7 of the English Workmen's Compensation Act of 1897 (60 & 61 Vict. chap. 37) declares that it shall apply to employ

ment on, in or about any building which exceeds thirty feet in height, and is either being constructed or repaired by means of a scaffolding, or being demolished." It was argued that compensation should only go to workmen exposed to the risk of falling thirty feet, but the English decisions have applied the thirty feet to the height of the structure, not to that of the scaffold. (Labatt Mast. & Serv. [2d ed.] 5513.)

Even without a special guard rail enactment, it has been held that a scaffold swinging eighteen feet from the ground unprovided with a safety rail is an unsafe place. (Kirby Lumber Co. v. Hamilton, 171 S. W. Rep. 546.) It would frustrate the legislative intent to hold here that where the scaffold has been lowered during the progress of the work from a dangerous height an employer escapes all liability for such necessary protection the moment that scaffold passed below twenty feet from the ground.

The other exceptions taken in the course of the trial, including that to the charge, do not present error.

I advise to affirm the judgment and order, with costs.

12. PROVISION AS TO RAILING AS APPLYING TO DISMANTLING RICE V. CUMMINGS CONSTRUCTION Co., 189 App. Div. 832 (Nov. 10, 1915), abstract [affd., without opinion, 220 N. Y. 564 (Jan. 9, 1917)].

A carpenter, engaged in erecting forms for concrete work, sustained fatal injuries by a fall from a platform, the planks of the floor of which were not nailed down. It was urged that as the platform was being torn down, there could be no recovery, since in such case the statute would not be applicable. It appeared that the platform in question was in sections, and that as each section was torn down it was put up in another place. Sometimes a section was left standing for the purpose of handling timbers. The question was disputed whether the section causing the injury was being demolished or whether it had been left to be used for the movement of timbers. The court stated that in its view the greater weight of evidence favored the theory that the platform was being demolished. While of this opinion, and that in such case the statute had no application, it held that plaintiff's contention that it was being used at the time as a scaffold was not unreasonable, and as three juries had found the facts in favor of the plaintiff and awarded damages, the judgment founded upon the verdiet would not be disturbed.

13. IMPROPER CONSTRUCTION

A riveter engaged in the construction of a bridge over a street fell and was severely injured by reason of the shifting of a scaffold. At the time of the accident he was engaged in adjusting the level

of the scaffold. His employer, the defendant, failed to prove contributory negligence on the part of plaintiff as to the manner of adjustment, and an award of $20,000 was unanimously affirmed by the Appellate Division on the ground of improper construction of the scaffold. The text of the opinion is as follows: GRIFFEN V. PENNSYLVANIA STEEL Co., 171 App. Div. 675 (Jan. 14, 1916), in part.

JENKS, P. J.: A servant has recoverey [recovered] against his master in that the master did not fulfill the Labor Law to furnish a safe scaffold. (See Consol. Laws, chap. 31 [Laws of 1909, chap. 36], § 18, as amd. by Laws of 1911, chap. 693). The master was building a bridge over a city street. The scaffold was suspended from the top of the bridge by two ropes, one at either end. It had been used for half a day by the servant as a riveter, when, in consequence of his complaint to his foreman that such ropes were worn and not safe, the servant and a fellow-servant were directed to select and to substitute new ropes. They did so. The servant, looking from the top of the bridge, saw that the scaffold as suspended by the servant and his fellows with the new ropes was not level. Thereupon the servant descended on the outside of the body of the bridge for 8 feet and stood upon a flange 6 or 8 inches wide, and, holding onto one rope, attempted to level the scaffold by change or readjustment of the ropes. When thus at work, the scaffold suddenly shifted, one end of it went down, so that the scaffold changed from horizontal towards perpendicular, the end that fell dragged out the other end close to the servant and jerked a suspension rope out of his hand. The servant fell to the earth some 20 feet below and was severely injured. The scaffold shifted because one of the suspension ropes slipped off an end of the scaffold. The servant contended, with sufficient proof in accord to sustain findings, that this could not have been if there had been a bolt at the end of the scaffold to hold the ropes, or if there had been two suspension ropes at each end of the scaffold instead of one.

The fault was seen by the plaintiff from the top of the bridge. It would seem physically possible that the suspension ropes might have been made equal by manipulation of them from above, or that such equalization might have been made after drawing up the scaffold again to the top of the bridge. Now, if the master had shown that another method (or other methods) comparatively safe was open to the servant, and that such method was rejected by him for a method which was hazardous, and that he freely chose the latter, then the master might well attack the judgment and the order. The master undertook to establish that it would have been equally practicable to draw up the scaffold to the top of the bridge and there to readjust it. It sought such proof from witnesses called by it who had been fellow-servants of the plaintiff, who were on friendly terms with him, and who had been subpenaed by him. These witnesses evidently disappointed the master, becaUSO one of them testified that he "did not think" the method suggested by the master could have been used, and the other, while stating that it was not