This case was before the court in 136 Appellate Division, 100, when we reversed a judgment in favor of the plaintiff upon the ground that he assembled the adjustable scaffold and that the fall did not come from any defects in the jacks, but rather from the manner in which they were assembled and fastened by the plaintiff. Recovery was then sought at common law. The case was retried and plaintiff’s recovery was reversed by this court without opinion (143 App. Div. 971), the court evidently considering that the situation had not changed. Upon the second trial the plaintiff relied upon the common-law liability and the. Employers’ Liability Act. Upon this trial he relies upon section 18 of the Labor Law. It appears that he was directed to use the scaffold which was then erected for use. He and Brown of their own motion took it apart and reassenabled it for a part of their work and later took it apart and reassembled it. He swore upon the first trial that before they took the scaffold • apart the first time the legs stood about four inches out of the perpendicular and that they assembled it with substantially the same slope in the legs. Upon this trial it appears from the plaintiff’s expert that if the legs stood at a slope of four inches only the strain upon the clamp at the time of the fall would be 100 pounds, but if the legs were fifteen inches out of the perpendicular the strain upon the clamp would be 400 pounds, and if the factor of safety was called ten that weight would exceed the limit which the scaffold should be called upon to bear. He tested the clamp and found that it pulled out on a weight of 1,350 pounds. The plaintiff now testifies that the slope of the legs was fifteen or eighteen inches out of the perpendicular. If we assume that it was four inches only, as he testified upon the former trial, then no negligence could be imputed to the defendant, for the clamp was able to sustain all the pressure put upon it if properly screwed up, and the conclusion irresistibly follows that the cause of the fall was the improper manner in which the jacks were adjusted. The change in the plaintiff’s testimony is vital, and no reasonable explanation appears for it except the necessities of the case. If the defendant had desired to know whether this platform was capable of • sustaining the proposed strain, or at what angle the legs should *778stand, it would • naturally have called upon the -plaintiff, its skilled carpenter, for information upon that subject. Plaintiff’s evidence shows that he is familiar with the erection of platforms and scaffolding and knows that the slope given to the legs out of the perpendicular has a direct bearing upon the load which the scaffold may bear. The defendant furnished a scaffold complete in itself; the plaintiff took it apart and readjusted it twice in his own way and without instructions. Any ordinary carpenter would know how to assemble the . scaffold and that its suitability depended upon the slope given to the legs and the maimer in which the clamps were screwed up. The scaffold as it was constructed at the time it fell was not furnished by the defendant in the condition in which it was. Its condition was due to the manner in which the plaintiff assembled it. Nothing, about the scaffold broke. . The opinion on the former trial applies to the situation here, which has not materially changed. Section 19 of the Labor Law provides: “All swinging and stationary scaffolding shall be so constructed as. to bear four times the maximum weight required to be dependent therefrom or placed thereon, when in use, and not more than four men shall be allowed on any swinging scaffolding at one time.” It would seem, without particular examination, that this section would indicate the factor of safety required in this scaffold, But we need not consider that question. The evidence shows that the plaintiff met his injury not from a defective scaffold furnished by the defendant, but from the improper manner in which he . assembled it after he had taken it down, and his injury came from the improper use of the scaffold. He was not told to take it down; if he did not know how to assemble it he should have called for the information or used it as he found it. But he evidently did know and simply made a mistake in not giving the proper attention to the manner in which the clamps were secured. The judgment is against the evidence.
It appears that the day before, in using the scaffold after the plaintiff had assembled it, it sustained a heavier burden than was put upon it at the time of the fall. ,
It was error not to permit the defendant to show what other heavy work this scaffold had sustained as bearing upon *779the question whether it were suitable and appropriate for the purposes for which it was being used. It was urged that the header, after being subjected to much strain, might not be as strong as it formerly was. The evidence indicated that there were many pieces in the control of the carpenter which were from time to time used as headers. It was also indicated that this header had had but little use.
The judgment and order should be reversed and a new'trial granted, with costs to the appellant to abide the event.
All concurred, except Houghton, J., dissenting in opinion in which Betts, J., concurred.