I am unable to concur in the reversal of this judgment. The plaintiff testified that he had been in the employ of the defendants, who had been piano manufacturers for seven years prior to the accident, as a porter, and in operating joining and planing machines; that the defendants were at the time of the accident moving their factory from One Hundred and Twenty-sixth street to One Hundred and Thirty-second street, and the plaintiff with other workmen was - engaged in moving machinery from the old to the new factory for a week or more before, the accident. Saturday before the accident Pickett, the defendants’ foreman, told the plaintiff to go to the new factory and help the machinists at this work. On that morning when he got to the new factory he found the machinists and one Tempe there. Tempe had worked a saw at the old- factory and was employed by the foreman Pickett, but so far as appears he was not a foreman, nor one employed by the defendant to. control the work, but was a fellow-employee of the plaintiff. The plaintiff testified that Tempe told him (plaintiff) to build a scaffold to set up the machinery that had been moved to the new factory; that the plain-: tiff and Tempe commenced to build the scaffold on Saturday and finished it on Monday about two o’clock. What is here called, a scaffold seems to have been a platform built with, timbers nailed to *44the floor and ceiling. After these uprights had been placed, cross pieces were nailed on, plaintiff and Tempe selecting the lumber from lumber on the premises which had been used before. The plaintiff testified that when they commenced to construct this scaffold he said to Pickett that they would need lumber to build the scaffold and that Pickett told him he could use the wood that was on thei premises. ¡Neither Tempe nor the plaintiff had. any instructions from the defendants or the foreman as to how they should erect this scaffold, or what particular lumber they should use, but after it was built and before plaintiff used the scaffold he asked Pickett whether he thought the scaffold was strong enough, to which Pickett replied, “ Yes, the scaffold is strong enough.” At that time two machinists, Tempe and another workman were upon the scaffold. The plaintiff then went upon the scaffold and lifted up the shafting to adjust the pulleys. After the shafting had been lifted and when they were about inserting one of the pulleys, the scaffold collapsed and the plaintiff fell sustaining injuries for which he seeks to recover in this action. ¡During the time that the plaintiff had been with the defendants he was a wood worker and was familiar with different kinds of wood. The plaintiff also testified that prior to the erection of the scaffold which collapsed he had erected other scaffolds in the building which were used for installing the machinery; that he was unable to say whether Pickett was present when the scaffold was built, but that he and Tempe selected the lumber that they thought proper; that the plaintiff could see' the character of the wood and examined it to see if it was good and that it looked sound and good; that he found it all right for the purpose and did not find any knots in it; that he looked to see if there were knots, but that there were none; that he would not put up any material that had knots in it; that Pickett,, the foreman, . went up on the scaffold with the plaintiff. After the scaffold fell it appeared that one of the cross pieces nailed to the uprights broke; that there was a knot in the timber at the place where it broke, and that the nails used. to nail this cross piece to the upright were pulled out. There is also testimony ■ that this timber was painted upon one side,, but not o.n the other, and that persons examining the timber could see the knot upon the unpainted side; that there was plenty of lumber in the building that appeared to be *45in good condition and proper for the purpose, and it was the breaking of the cross pieces that caused the scaffold to collapse. The knot that caused the timber to break went all through the plank and it could be seen without any trouble.. The cause of the accident was that a piece of timber selected by the plaintiff and his fellow-workman for the purpose of building this scaffold had a knot, which could have been discovered upon inspection, which rendered it so weak that it would not bear the weight placed upon it; and the fall of the scaffold, so far as is disclosed by the testimony, was caused by the use of this piece of timber. "Without considering the effect of the Labor Law, it must be conceded, I think, that this accident was caused by the negligence of the plaintiff and Tempe in selecting improper material for the scaffold when there was plenty of proper material supplied'by the master for that purpose.. As there is no claim that there was not sufficient lumber in the factory for the purpose or that the defendants or their representatives interfered in any way with the plaintiff and Tempe in the construction of the scaffold or selection of the lumber to be used, the defendant was not liable. (Butler v. Townsend, 126 N. Y. 105; McCone v. Gallagher, 16 App. Div. 272.)
It is claimed by the plaintiff, however, that the Labor Law (Laws of 1897, chap. 415, §§ 18, 19) has changed the rule, and that under that statute the defendants are liable. Section 18 of the act is as follows: “ 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 for the performance of such labor, scaffolding, hoists, stays, ladders or other mechanical contrivances which are unsafe, unsuitable or improper and which are not so constructed, placed and operated as to give proper protection to the life and limb of a person so employed or engaged.” And as I understand the prevailing opinion, it is that this provision of the law did apply, and that under it a defendant is liable if a scaffold erected and used for work of this character proves unsafe or insufficient, although its condition is the direct result of the negligence of the individual who is injured. I am unable to agree with either of these propositions. This 'section imposes upon employers a special duty in regard to scaffolds furnished by the employer for certain specific classes of *46work. A violation of the section is made a misdemeanor by section 447a of- the Penal Code, and undoubtedly a violation of this duty imposed by statute" would be evidence of negligence which would' justify a finding against an employer furnishing a scaffold for his employees which was not such as required by the statute. It is negligence for an employer not to comply with the provisions of the law; but there is nothing to justify the court in holding that-the ordinary rules applicable in actions for negligence should not apply to such a case, and the statute should not be extended beyond its fair meaning. The provision is evidently intended to apply to the erection, repairing or painting of a building or other structure, to prevent builders from furnishing unsafe and improper scaffolds for their employees in the performance of their work. It seems to me that no construction can be given to this statute which would bring the work that the plaintiff was employed to do within its provisions. The plaintiff "and his fellow-laborers were employed in removing machinery from one factory to another. They had nothing to do with repairing, altering or painting the building, but were employed to put up the machinery in the building after it was made ready for that purpose. A scaffold which would be suitable or safe for such purpose might be very unsafe and ah unsuitable scaffold if used in the erection, repairing, altering or painting the building. The work which the plaintiff was engaged to do was entirely distinct from the work specified in this statute. The strength of the scaffold depended upon the kind'of machinery that was being installed, and the danger to be apprehended from an insufficient or unsafe scaffold was entirely different from that which would- be incurred in a scaffold used" for the erection, altering or painting a building. This was all work relating to the machinery, not to the building, and whether or not a scaffold was necessary for that work depended upon the nature of the machinery to be installed and its distance from the floor. There was nothing to justify the defendants in assuming that these workmen would not know how to erect such a scaffold as was necessary for the purpose of installing the machinery to be installed. ¡Nor did these defendants attempt to provide or procure for their employees any scaffold at all. They séiit these men to do- the work. The men undertook this work, and in doing it the men themselves determined what scaffolding was; *47necessary and they constructed the one they considered necessary. Pickett, the foreman, was present after this scaffold was erected; he expressed an opinion to the plaintiff that the scaffold was safe. There is no evidence that he had any authority to furnish scaffolding for the men or that he exercised that authority, except that in answer to a cpiestion of the plaintiff he expressed his opinion that the scaffold was safe, and so far as appears it would have been safe but for the negligence of the plaintiff and his fellow-workman in selecting improper timber that they used in its construction, of which Pickett had no knowledge. It seems to me that this is clearly a case which was not contemplated by section 18 of the Labor Law to which attention has been called and that act did not apply; that the plaintiff and his fellow-laborers were not engaged in the employment specified in the act; that the defendants never furnished nor attempted to furnish, or understood that they were to furnish, a scaffold for the use of the men, and that the act had no application. But even assuming that it did apply, I think the plaintiff is precluded from a recovery upon the ground that the accident happened solely from his own negligence and that of a fellow-workman in the selection of materials improper for the purpose, the impropriety of the use of which an examination would have disclosed, and assuming that there was evidence of the defendant’s negligence the evidence was conclusive that the plaintiff’s negligence not only contributed, but was the sole cause of the injury. It could no more be said that this case was within the statute than in the case of a carpenter employed to erect a bookcase in a house and using for that purpose a wooden horse to stand upon which he had made himself, out of materials that he found there which were insufficient, would impose a liability upon the master. A scaffolding is as much required to hang a picture upon a wall or erect á bookcase in a house as to install machinery in a factory.
I think that the statute did not apply, but that whether it did or not, the plaintiff was guilty of contributory negligence and that the judgment appealed from should be affirmed.
Van Brunt, P. J., concurred.
Judgment and order reversed, new trial ordered, costs to appellant to abide event.