From the facts as stated in the opinion of Mr. Justice Scott it is evident that the elevator was a scaffold within section 18 of the Labor Law (Laws of 1897, chap. 415), which 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, unsuit*355able 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.”
As the elevator could be set in motion from any one of the four floors of the building by simply pulling a rope, it was not, I think, a safe and proper scaffold within the contemplation of the above statute, even though it be admitted that it was in sound condition as an elevator and that, while at rest, it was suitable for the use to which it was put, because, unless the power were shut off, it was liable to be moved. -Hor was the arrangement made by the defendant with the superintendent of "the building for its exclusive use, to which defendant testified, but which it was established was not observed, a sufficient discharge of the duty imposed upon the. defendant by the statute. It was unsuitable, as a scaffold, by reason of its mobility, and this was the immediate cause of the accident. It was not essential to the plaintiff’s cause of action to show the cause of the sudden ■ starting of the elevator ; her case was established by showing that the scaffold, as such, was defective or improper and that the accident resulted therefrom.
Upon the evidence there was a question as to whether or not the defendant fulfilled his duty by safeguards which would prevent the elevator being set in motion. It follows, therefore, that the judgment dismissing the complaint should be reversed and a new trial granted, with costs to appellant to abide event.
Ingraham, Clarke and Houghton, JJ., concurred; Soott, J., dissented.