The judgment appealed from would hold the defendant to the liability that would have attached if it had completed a stairway for use of persons passing from floor to floor of the building, and by reason of negligent or faulty construction some one rightfully thereon had sustained injuries.
The facts, however, are quite different. The defendant had a contract to partially construct the stairs. It was to erect the iron stringers, risers and posts, and to place upon the stringpieces a light sheet of iron between one-sixteenth and one-eighth of an inch thick, upon which marble treads were to be placed. These pieces of iron were not designed for treads, for people to step upon, but were merely a backing for the marble treads, to protect them from fire. The obligation did not rest upon the defendant to produce a stairway safe for travel, but merely that portion of a stairway which, when completed by the work of some one else, would be a safe means of travel. If the defendant had agreed to build a stairway designed for the use of others while the building progressed, then a duty would have rested upon the defendant to make a stairway that would be safe for such use, within the principles stated in the cases cited by *846the respondent. In this department we decided in a very-similar case that there was no liability on the subcontractor. (Ryan v. Irons, 114 App. Div. 165.) The respondent attempts to distinguish that case from the instant case, in that in the Ryan case another stairway had been provided for the workmen to use, while in this case no other provision had been made. That fact, however, does not have any bearing on the liability of the subcontractor, for in neither case did any duty rest upon the defendant to provide a means of passage from one floor to another. The owner or the general contractor may have been under such a duty; the employer of the injured workman was under an obligation to provide safe ways and place to work. The Ryan case does not rest upon tie ground that there was another safe way provided; the court said: “ 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 hable 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.” The Ryan case was followed in McDonough v. Toop (120 App. Div. 875).
The judgment is. further sought to be sustained upon the ground that it was the custom to use these stairways in the condition that this stairway was in, and that, therefore, the defendant owed a duty of care to those whom it had reason to know would be using the staircase as the plaintiff did. Two cases are cited as authorities for this proposition. (Coughtry v. Globe Woolen Co., 56 N. Y. 124; Quigley v. Thatcher, 207 id. 66.) Both of these cases involved the use of scaffolds, appliances completed and ultimately designed for the purpose to which they were put. In the first case an owner erected the scaffold for the express purpose of use by the workmen, and it was held that, although it was under no contractual duty to do so, having prepared the scaffold, it was its duty to make it safe. In the other case the general *847contractor- constructed and located a scaffold in such a way that it of necessity had to be used by the subcontractor’s employees, and it was said that the contractor may be held to have anticipated such use and to have assumed liability to such subcontractor and his employees for the safety thereof. In commenting on this case the Court of Appeals later said: “ This is far from deciding that a subcontractor would be responsible for every scaffold, ladder, hoist, stay or other mechanical contrivance which his employees might see fit to use in the construction of a building on which different contractors were employed.” (Bohnhoff v. Fischer, 210 N. Y. 172, 175.)
I cannot see how a custom on the part of others of putting an appliance to a use for which it was not intended can vary the contract which the defendant had made, and require it to add to the structure things not called for by the terms of the contract. It may be that it would have placed a duty on the owner or contractor, realizing that this structure would be so used, either to place temporary treads, or board it off, or put up signs, or prohibit its use. If the evidence had been that because of this general use it was the custom for the subcontractor, to do some of these things, then it might be held that the parties, contracting with a knowledge of this custom, would be deemed to have intended such things to have been done, in addition to the contract stipulations. (See Cassin v. Stillman, Delehanty-Ferris Co., 185 App. Div. 63.) In my opinion to attempt to hold the defendant liable by reason of any knowledge ov a custom of others to use the structure for a purpose/for which it was not designed would be unreasonable. If there was negligence in this case, it was not attributable to the defendant, but to the plaintiff or his employers. In my opinion the judgment should be reversed and a new trial ordered, with costs to appellant to abide the event.
Laughlin and Merrell, JJ., concurred; Clarke, P. J., and Smith, J., dissented.