I concur on the ground that plaintiff had made out a prima facie ease, at least to the extent that the accident occurred through the improper scaffolding fur*179nishecl hy his employer while he was performing labor of some kind in the erection, etc., of a house. Labor Law, § 18. Whether he had also shown negligence on the part- of defendant’s superintendent or a person acting as superintendent need not be here decided.
Respondent’s reliance on the case of Ferrick v. Eidlitz, 195 N. Y. 248, seems to me to be unwarranted. That- case did not involve the construction or application of section 18 of the Labor Law, and the reference in the opinion at page 252 to the subject of scaffolding and the employe’s occupation in regard thereto, must not be read apart from its context. It is plainly intended merely to point out the distinction between cases which involve scaffolding and that case which concerned the roof of a shed.
It should be noted also that the learned trial judge erred in compelling plaintiff to elect whether he “ prosecuted his action ” under the “ common law ” or the Employer’s Liability Act. An action alleging negligence on the part of an employer, whether under the common law alone or the common law as extended by the Employer’s Liability Act, sets out but a single cause of action (Payne v. N. Y. S. & W. R. R., 201 N. Y. 436), nor is there any such inconsistency either in the theory or the facts upon which a recovery might be based, in this case, as to warrant the compelling of an election. See Tuthill v. Skidmore, 124 N. Y. 148, 155; Mayo v. Knowlton, 134 id. 250, 252; Seymour v. Lorillard, 51 N. Y. Super. Ct. 399. Moreover, in no aspect did the plaintiff proceed as upon the common law alone, for, in any event, he claimed to avail of a statute, i. e., Labor Law, section 20. It is impossible to determine to what extent the court below may have been influenced under these circumstances by defendant’s election (over his objection) to proceed under the Employer’s Liability Act.
Judgment reversed.