The defendant Toop was the contractor for the iron work, including stairways, for a hotel in the city of Hew York, in process of erection. The plaintiff was in the employ of one who had the plastering contract for the same building.
The defendant had erected the iron stringers and risers of the stairway, and had put in position, but not bolted, the sheet iron treads upon which, when finished, the stone treads were to be placed. These sheet iron treads were not intended to walk upon, but were for the purpose of protecting the stone treads from fire underneath, and before the stone treads were placed on them they were to be bolted to the iron framework.
The plaintiff was directed by his employer to plaster the side walls of the stairway between the two upper floors. This he proceeded .to do, and, instead of erecting any staging or placing any plank, he attempted to perform the work by standing on this uncompleted stairway, and his weight forced one of the unbolted sheet iron treads through the opening and he fell to the floor below and sustained the injuries for which he brings this action.
The stairway was not used or in condition to be used for ascent or descent in the building. Another stairway had been provided for that purpose.
Plaintiff insists that the defendant was negligent in not bolting the sheet iron treads, or in not fitting wooden treads over them, or in not barring the stairway, or in not maintaining a-sign of danger. We do not think the defendant was bound to do any of these things. The difficulty with plaintiff’s position is that the defendant was under no obligation to him to provide a safe place in which he might perform his work. A person cannot be held liable for injuries received because of a defective way or structure unless it be his duty to erect or maintain such way or structure in a reasonably safe condition.
It was not a situation where the defendant led the plaintiff into the belief that he might use the stairway with safety or where an insecure covering had been placed over a hole in a floor over which one might be expected to walk. The stairway was in process of erection and incomplete, and not in condition to be used for travel, and was not used for that purpose. The plaintiff could use it *167to reach the wall which he was plastering if he desired, instead of erecting any other structure for that purpose; but if he did use it, he did so at his own risk and at his own peril.
Under the facts disclosed the plaintiff failed to prove any cause of action against the defendant and his complaint should have been dismissed.
The judgment and order must be reversed and a new trial granted, with costs to the appellant to abide the event.
Patterson, Ingraham and McLaughlin, JJ., concurred; O’Brien, P. J., dissented.