We agree, with the opinion of Mr. Justice Benedict at Trial Term (76 Misc. Rep. 599), that under the circumstances here disclosed the chain tongs which broke may be deemed a part of defendant’s plant. (Lipstein v. Provident Loan Society, 154 App. Div. 732, decided herewith.) But under the circumstances here disclosed the liability, if any, of defendant for a defect in the condition of the plant arises but of its negligence in not discovering or remedying such defect. (Labor Law [Consol. Laws, chap. 31; Laws of 1909, chap. 36], § 200, as amd. by Laws of 1910, chap. 352.) While the evidence in this case discloses that the chain tongs were somewhat worn, and the result proved that they were insufficient for the use to which they were put, we think that the evidence wholly fails to establish that the defect was of such a character that defendant could be charged with negligence in not discovering or remedying it. A thing may be worn, but yet not sufficiently worn to charge an employer with negligence hr permitting the same to be used. The plaintiff in this case, with his eighteen years of experience, was fully as competent as any other person to determine whether the worn character of the tongs was such as to make it unsafe to use the same. But his own evidence upon that point is, that although he noticed the worn link, which subsequently broke, he still believed that the tongs were entirely sufficient to do the work for which he employed them. Why would not the master be justified in supposing the same thing ?
We also think that there was error in the court’s ruling upon *742a'request to charge submitted by defendant. There was a conflict of evidence as to whether it was proper to use chain tongs in the manner in which plaintiff did use them. The, defendant requested the court to charge “ That no negligence on defendant’s part may be based upon the worn condition of the tongs which broke if they were reasonably safe and adequate for use by hand if the jury find that is the manner in which the tongs were to be used properly.” The court refused to charge in that form, but did charge with the addition of the words “provided it was improper or unusual to use them as plaintiff did use them.” If the only way in which the tongs should have been used was by hand, any other use would be improper, and the mere fact that it may have been usual to use them in a different way and in the way that plaintiff did use them, would not justify this improper use. A wrong thing cannot be made right because it is customary. Certainly this would be so unless the master knew of the unusual arid improper use, and assented to it, and the modification of the request to charge which introduced the “usual” element omitted this necessary qualification.
Jenks, P. J.., and Woodward, J., concurred; Hirschberg, J., voted to affirm upon the opinion of Mr. Justice Benedict at' Trial Term, with whom Rich, J., concurred.
Judgment and order reversed and new trial granted, costs to abide the event.