The defendant had a contract with a corporation known as the 105 West Fifty-fifth Street Building Corporation for the *848installation of ornamental iron work in the construction of a building at that location. This contract included, among other work, the installing of steel work with the inside stairways exclusive of the marble treads. As the building progressed these staircases were put from one story to another and these stairways were used by the other contractors and their employees in going up and down through the building. An employee of another contractor doing masonry work upon the building stepped upon one of the treads of one of these •stairs which fell by reason of the fact that it had not been bolted as it should have been. He has brought this action to recover against the defendant on the ground of its negligence in not properly constructing this staircase. It appears that this staircase was constructed with an iron frame and cement arches; upon each tread there was a sheet iron piece about an eighth of an inch thick which rested upon the risers in front and about three inches upon cement work in the rear. It was about three feet long and rested upon some side standards to which it was required to be bolted. In the final use of the building this iron plate was not to be used as the tread of the staircase but marble was to be put on top of it and this iron tread was for the purpose of protecting the marble in case of fire, so that the marble would not break or fall. The uncontradicted proof shows that the plaintiff had been engaged in similar construction for many years and that it was the universal custom as the construction progressed for these staircases to be put in in this shape and it was the custom to use these staircases with this iron tread for workmen going up and down through the building. The evidence further shows that while the defendant was thus constructing these staircases from one story to another these staircases were in constant use to carry up brick-and mortar by the employees of the masonry contractor, so that the defendant had full knowledge of their use as well as the custom in making this use. While this work was progressing this plaintiff was using this stairway to carry up some mortar, and this iron plate, not being bolted, slipped aside and plaintiff fell and was injured." The question here presented is whether the defendant owed any duty to the plaintiff to properly perform his work so as to make the use of this stairway which he had *849reason to anticipate reasonably safe. The construction of these staircases was not completed in the upper stories. There was no other way and according to custom there never was any other way for the employees of the masonry contractor to get up with the mortar and brick or for employees of other contractors to pass up and down, and this was known to the defendant. Under these facts within the authorities the defendant owed a duty to those who to its knowledge would make use of the stairway. Much reliance is placed by the appellant upon the case of Ryan v. Irons (114 App. Div. 165), but in that case a party stood upon a stairway in process of construction instead of erecting a scaffolding. The stairway was not in condition to be used for ascent or descent and another stairway had been provided for that purpose. In the case of Smith v. Brady (136 App. Div. 666) it was stated: “ Where several independent contractors are worldng on a building, each of them owes to the employees of the other contractors a duty to exercise due care in performing his work if it might otherwise be a source of danger to such employees while lawfully engaged in their work on the building. * * * ‘ The fact that there was no contract relation between plaintiff and defendant did not deprive the former of a cause of action.’ ” The same rule is held in Galbally v. Strauss (159 App. Div. 124), Mr. Justice Scott writing. In McMullen v. City of New York (110 App. Div. 117) the rule is stated that “ A person undertaking to furnish machinery or appliances for the use of others, assumes a duty to furnish a proper and safe appliance, and a negligent performance of such a duty, resulting in injuries to those engaged in doing the work or lawfully using the appliance, imposes a liability upon the person so furnishing the appliance for injuries sustained in consequence of such negligence. The obligation does not depend upon a contractual relation between the person injured and the person whose negligence caused the injury, but upon a failure to perform a duty assumed by one which results in injury to another.” In Devlin v. Smith (89 N. Y. 470) defendant Smith, a contractor, employed to paint the interior of a dome, engaged the defendant Stephenson, an experienced scaffold builder, to build the necessary scaffolding. In an action" to *850recover damages for injuries sustained by one of the employees of Smith resulting from the fall of the scaffold, held, the defendant Smith was not liable, although he accepted the structure without examination, but that Stephenson was liable, although there was no privity of contract between him and the party injured. This case is distinguishable from the case at bar in that the scaffolding was built for this specific purpose. But in view of the universal custom in the use of these stairways in the condition in which this stairway was, and the defendant’s knowledge of that custom, I think it may be said that the defendant owed the duty of care to persons who, it had reason to know, would be using the staircase for the purpose of carrying brick and mortar to the upper part of the building. (Coughtry v. Globe Woolen Co., 56 N. Y. 124; Quigley v. Thatcher, 207 id. 66.)
The judgment and order should be affirmed, with costs.
Clarke, P. J., concurred.
Judgment and order reversed and new. trial ordered, with costs to appellant to abide event.