I concur in the reversal of the judgment in favor of the plaintiffs and in the dismissal of the complaint as against the defendant Board of Education. I dissent, however, insofar as the court would grant a new trial as to the defendant Caristo; and I would dismiss the complaint also as to said defendant.
The defendant Caristo was the general contractor. The decedent and the plaintiff workmen were employees of the subcontractor Artistic and were injured because of the collapse of a scaffold procured, assembled and erected by said subcontractor. At the time of the accident they were working on the scaffold at the direction of and under the supervision of one Brasen, the superintendent for their employer, the subcontractor. As stated in the majority opinion, there can be no doubt that they took their orders from Brasen, that he ordered that the scaffold be used and that he exclusively planned and directed the work at the time of the accident. This being so, there is no support for a verdict for the plaintiffs against the defendant Caristo either on the theory of violation of the provisions of section 240 of the Labor Law or on the theory of common-law negligence.
It is-settled, that the provisions of said section 240 with reference to the furnishing of scaffolds do not apply to a general contractor who is not directing the particular work involving the use of a scaffold by a subcontractor. Under the section, the duty of furnishing a proper scaffold is placed upon the immediate employer of the labor using' the' same, and in - this case, this would mean the" subcontractor Artistic which employed the' decedent and'the other injured workmen engaged thereon at the time of the accident. (Komar v. Dun & Bradstreet Co., 284 App. Div. 538, 541; Gambella v. Johnson & Sons, 285 App. Div. *388580; Mendes v. Caristo Constr. Corp., 5 A D 2d 268, 6 A D 2d 673, affd. 6 N Y 2d 729.)
To make out a case, the plaintiffs rely upon an alleged statement by Caristo’s superintendent, Koehler, to the decedent and the other workmen that ‘ ‘ we should use the scaffold till we get another one.” Such statement, however, was made the day before the accident and at a time when the materials for the scaffold were resting on the ground and unassembled. As a matter of law, such statement does not have the effect of putting Caristo in the position of a “ person employing or directing ” these workmen the next day in their work on the scaffold, that is, within the meaning of section 240. What was said in Blackwood v. Chemical Corn Exch. Bank (4 A D 2d 656, 657) is applicable. There this court, in discussing whether or not the defendant (an owner) was directing plaintiff (an employee .of a cleaning contractor) within the meaning of section 240 of the Labor Law, held “Kluttz v. Citron (2 N Y 2d-379, 383) indicates that the test of direction is supervision relative to the manner or method of performance of the work to be done; under Klutts, there is no direction within section 240 if performance of the work is left solely to the judgment and experience of the independent contractor. The retention of the limited power of general supervision to ascertain whether the cleaning contracted for was being done is not the equivalent of direction within the meaning of section 240. (See Moore v. Charles T. Wills, Inc., 250 N. Y. 426, 429.) ”
Furthermore, there is no support for a recovery against the defendant Caristo on the theory of common-law negligence. Under the circumstances, there was no duty upon Caristo to see to it that the scaffold was properly assembled the following day or that it was not subjected to excessive weight or to use by an excessive number of men. “ A general contractor is not obliged to protect employees of his subcontractors against the negligence of their employers ”. (Gambella v. Johnson & Sons, supra, p. 582.) And, the alleged statement of Caristo’s superintendent was not tantamount to a negligently given direction which the workmen may be said to have followed or to a negligently given assurance of safety upon which the workmen may be said to have relied. (See Broderick v. Cauldwell-Wingate Co., 301 N. Y. 182.) This is so, as a matter of law, because, in the use of the scaffold by the workmen in the particular task at the time of the accident on the following day, they were acting pursuant to the directions of their employer. They were carrying out the orders of their employer and not acting or relying upon the alleged statement of Caristo’s superintendent.
*389Finally, there was no causal relation between the alleged statement of Caristo’s superintendent and the cause of the injury of the workmen, namely, the collapse of the scaffold due either to the improper assembling of the same or the placing thereon of an excessive number of men or weight.
If a case had been made out by the plaintiffs against the defendant Caristo, I would concur in the majority opinion that it was error to dismiss the cross complaint of Caristo against Artistic.
Breitel and Bastow, JJ., concur with Boteih, P. J.; Eager, J., dissents in opinion, in which McNally, J., concurs.
Judgment appealed from reversed, on the law and on the facts, the complaint against defendant Board of Education dismissed, with costs, the judgment against defendant Caristo reversed and a new trial ordered, with costs to abide the event, and the judgment in favor of Artistic on both cross complaints is reversed and a new trial ordered, with costs to Caristo, and the judgment in favor of John Greene upon the cross complaint in Action No. 1 is affirmed. Settle order on notice.