The defendant, a domestic corporation, is engaged in thé manufacture of elevators, and on the 6th of September, 1906, was installing elevators in a building on the corner of Sixty-second street and Broadway in the city of New York. The plaintiff’s intestate -was in the employ of the defendant. There were two -elevator shafts in the building, In one of these shafts, which was about eleven by *505twenty-one feet, the deceased and a helper were engaged in placing brackets to which were to be affixed rails to control the counterweight for the elevator. The men had commenced on the ground floor and had worked up to the fourth or fifth story. Some time previous there had been constructed in this elevator shaft, by other workmen, a scaffold which, so far as appears, was properly constructed and complied with the Labor Law (Laws of 1897, chap_ 415). This scaffold was suspended by a rope over a pulley upon the top. of the elevator shaft, and was moved from time to time by the deceased and his helper as the necessities of their work required. This scaffold was about ten feet long and two feet wide. The defendant’s foreman, who had charge of this work, was called as a witness for the plaintiff and testified that he found this scaffold suspended in the shaft, and obtained permission to use it from the foreman of the building; that he inspected the ■ scaffold and. its appurtenances to see that it was properly constructed, placed and secured before it was used; that then the deceased and his helper commenced to use the scaffold, and had been using it about a week before the accident; that the day before the accident the scaffold was moved by the deceased and his helper to enable them to proceed with the work in the morning; that shortly after the-men went to work on the sixth of September, for some unexplained reason, the two men fell off the scaffold and both were killed; that immediately after the accident the foreman inspected the scaffold and found that it was swinging out from the wall of the shaft. On cross-examination the witness testified that the men were engaged in boring a hole in the inside of the shaft to insert bolts to hold the brackets; that there was a bracket at each floor and an intermediate bracket between the floors; that as they worked up the shaft they changed the position of the scaffold from time to time as the work required; that the persons who had used this scaffold before were the concreters lining the shaft with concrete; that the deceased asked permission to use this scaffold, saying that he would rather use it than the other scaffolding provided by the defendant; that the men at work were in the habit of sitting on the scaffold and drilling holes in the concrete in which to insert the bolts. What was called a “ furring strip ” was nailed to the scaffold and extended over to the opposite wall of the elevator shaft to *506steady the scaffold. After the accident the scaffold was found in perfect condition and .just the same as it had been before, except that this furring strip was hanging loose, the only change being that this furring strip had fallen away from the side of the shaft and was hanging down. As the scaffold was moved from place to place, the deceased and his helper were in the habit of securing it by this furring strip in a proper manner, and that was part of their work. On redirect examination the witness testified that the security and safety of a scaffold depends upon how it is secured each time it is moved; that after the scaffold had been moved, the witness looked in at the scaffold from the fourth, floor, and it was not shifted after he examined it. This furring strip was about one inch by two inches and eleven or twelve feet long; was not lumber belonging to the company, but had been left there by-other workmen ; that the defendant had furnished plenty of materi. als to do this work; that for a week or so before the accident these furring strips were used for braces; that this scaffold had a rail around it two or two and one-half feet high and also had side irons; that this fur ring strip was laid from the scaffold horizontally over to a concrete girder; that the company had two-inch plank to make those scaffolds and for doing this work, but the scaffold, was used at the deceased’s request.
The men went to work at eight o’clock and the accident happened about five minutes after eight, just after the men went to work No one saw them fall and there is no evidence that at the time the scaffold fell the men were actually at work drilling holes in the concrete. There is nothing to show that in' getting on the scaffold or in some other way the men had not dislodged this brace or that the insufficiency of the brace had anything to do with the accident.
While fully recognizing the obligation of the defendant under section 18 of the Labor Law (Laws of 1897, chap. 415) to provide suitable and proper scaffolds so constructed, placed and operated as to give proper protection to the life and limb of a person using them, I do not think that the evidence justified a finding that this provision was not fully complied with. The mere happening of the accident where the scaffold itself did not give way is not evidence that the accident was caused by a defect in the scaffold itself or in its supports and appliances, and there is nothing upon which *507a finding could be based that the scaffold was an improper one for the purpose for which it was furnished and used. If there had been evidence that the men were at work and the accident happened because this furring strip that was used to support it was insufficient for that purpose a different question would be presented ; but upon this evidence I do not see how the jury were entitled to assume or that we, on this appeal, can assume that the brace was insufficient. In fact I can find no evidence that the men were on the scaffold at all at the time they fell or that they did not fall from the scaffold while getting on it. The cause of the accident being unproved and there being no circumstances from which the legitimate inference can be drawn that the scaffold itself was unsafe or improperly constructed, or that the accident happened because of any condition of the scaffolding itself or from any fault of the defendant, I do not think that the verdict is sustained by the evidence.
For that reason the judgment appealed from must be reversed and a new trial ordered, with costs to the appellant to abide the event.
Patterson, P. J., and McLaughlin, J., concurred; Clarke and Houghton, JJ., dissented.