Gombert v. McKay

• Decision Date: 07 February 1911
• Citation: 94 N.E. 186,201 N.Y. 27
• Parties: GOMBERT v. McKAY.
• Court: New York Court of Appeals Court of Appeals

201 N.Y. 27

94 N.E. 186

GOMBERT

v.McKAY.

Court of Appeals of New York.

Feb. 7, 1911.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Margaret Gombert, as administratrix of Peter B. Gombert, deceased, against Peter McKay. From a judgment of the Appellate Division (134 App. Div. 970,119 N. Y. Supp. 1126), affirming a judgment for defendant entered on a verdict directed by the trial court, plaintiff appeals. Affirmed.

The nature of the action and the facts, so far as material, are stated in the opinion.

Charles La Rue, for appellant.

Frank V. Johnson, for respondent.

COLLIN, J.

The plaintiff brought the action to recover damages for the alleged negligence of defendant, by which the death of her intestate was caused. The relation between the intestate and the defendant was employe and employer. On November 22, 1906, the intestate, with three coemployes, began the job of painting the exterior woodwork of the building No. 23 West Seventeenth street, New York City. They, having caused to be taken there the swinging or portable scaffold with the tackle, pulley blocks, and falls ordinarily used in painting the exteriors of buildings, arrived at about 9 o'clock in the forenoon, and planned to commence the work at the second story. Two of them, other than the intestate, after investigation, decided that the best way to support the scaffold was to hang it upon planks to be projected out and resting upon the sills of the third-story windows, and made stationary by tying them to an interior fixture. About one foot below the window sills, and extending along the building and from it outwardly two or three feet, was a coping over which the planks were to reach. In order that each of the planks from the window sill outward would be level, they decided to rest it upon a support of the requisite height, placed upon and near to the outer edge of the coping. They obtained at a nearby shop and brought to the building the planks and hammer and nails, and at this point participation by the intestate in the construction of the support for the scaffold began. He expressed his idea of the proper way of building the support, and in return was shown the intended and planned method and in response said, ‘It is all right.’ Each support to be placed upon the coping was then made by the fellow workmen of the intestate by sawing and nailing together a piece of plank and boards obtained from the shop, after which the intestate from the inside of the building held it as it had been placed upon the coping while another from the outside nailed to the top thereof the plank, and then tied the plank to something within the building. The scaffold was then hung upon the planks by means of the hooks in the pulley blocks, was pulled up to the right place and upon it stepped the intestate and a fellow employe, who were just ready for work, when the support broke down from under one of the planks, and, the end of the scaffold dropping suddenly, the intestate fell to the street, and received the injuries which caused his death. A part of the work of the intestate as an employe of the defendant, through the two years or more last prior to his death, had been to assist in rigging the painters' scaffold in position on the outside of the buildings to be painted by himself and his fellow workmen, and, as they painted from place to place thereon, in raising or lowering the scaffold up and down the side of the building by means of the pulley blocks and the ropes, and, when a part of the building covered by the scaffold was painted, in shifting the scaffold to and rigging it in another place.

Inasmuch as the supports for the scaffold were planned and constructed by the intestate and his coemployes, the plaintiff could not, under the rules of the common law, have a recovery against the defendant. Butler v. Townsend, 126 N. Y. 105, 26 N. E. 1017;Kimmer v. Weber, 151 N. Y. 417, 45 N. E. 860, 56 Am. St . Rep. 630;Golden v. Sieghardt, 33 App. Div. 161,53 N. Y. Supp .460. The counsel for the plaintiff, while concedingthus much, argues that the provisions of sections 18 and 19 of the labor law (Consol. Laws, c. 31) abrogated or modified those rules in such wise and extent that they do not bar to plaintiff a right to maintain the action.

The provisions of those sections, in so far as material to this discussion, are: ‘A person employing or directing another to perform labor of any kind in the erection, repairing, altering, or painting of a house, building, or structure shall not furnish or erect, or cause to be furnished or erected...