The jury has found that as between the parties to this action the defendant was the primary wrongdoer. That question was not involved in the Perry action. He recovered against the plaintiff herein under the provisions of the Labor Law (§ 18, as amd. by Laws of 1911, chap. 693) imposing on the latter as between itself and Perry the positive duty of building a safe scaffold regardless of the negligence of third parties. As between Perry and this plaintiff it was the duty of said plaintiff to anticipate the overloading of the scaffold by this defendant or other acts of negligence on its part and to protect Perry against the same. The plaintiff could not defend the Perry action on the ground that his employer had been negligent in placing an undue strain on the scaffold. The issue here is entirely different. By the improper use of the scaffold the defendant subjected the plaintiff to a liability for which as between themselves the defendant was primarily responsible.
I, therefore, favor an affirmance of the judgment.
Woodward, J., concurs.
Judgment and order reversed, and the complaint dismissed.