This is an appeal from a judgment in favor of the plaintiff for $3,000 damages and $104.50 costs, entered in the office of the clerk of Erie county on the 16th day of February, 1911, upon the verdict of a jury rendered at a Trial Term of the Supreme Court, held in and for said county; also from an order denying defendant’s motion for a new trial made upon the minutes of the court upon all the grounds specified in section 999 of the Code of Civil Procedure, except that of excessive • verdict.
The action was commenced on the 3d day of June, 1910, to recover damages for injuries sustained by the plaintiff, alleged to have been caused solely through the negligence of the defendant.
About noon on the 31st day of March, 1910, the plaintiff, while • in defendant’s employ, was engaged with another employee in constructing a stack, so called, upon the premises of the Wickwire Steel Company in the town of Tonawanda, Erie county, N. Y., and received the injuries for which he seeks to recover damages in this action. Such stack, which was to be used in the reduction of iron ore, was eight feet in diameter, and when completed was to be one hundred and twenty feet or more in height. At the time of the accident the stack had been constructed to a height of about sixty-five feet, and for *246the purpose of enabling the plaintiff and his coemployee to construct such stack they were furnished by the defendant with, a scaffold made of angle iron, which was suspended from the top of such stack by means of clamps or steel hangers, which were attached to such scaffold. The scaffold was so arranged that it could be moved around the entire stack. When the entire upper surface of the stack had been raised a certain distance the clamps or hangers were placed upon the higher level of the stack, thus raising the scaffold to such height as would enable the plaintiff and his coemployee to add another section to the height of the stack. While tlius engaged upon the scaffold one of the clamps or hangers broke, and one end of the scaffold dropped and the plaintiff fell and slipped through between the floor of the scaffold and the rail which surrounded it to the ground below, and sustained the injuries for which he seeks to recover damages in this action.
The charge of negligence against the defendant is that it failed to provide a reasonably safe place for the plaintiff in which to work; that the scaffold was of insufficient strength; that the guardhook which held the scaffold to the stack was improperly and insufficiently attached, and was old and rusty, and that the scaffold had no safety rail surrounding the outside and ends,, as provided by section 18 of the Labor Law.
I think that there is no question presented as to the plaintiff’s contributory negligence. Neither do I think that there. is involved in- this case the question of the assumption of risk by the plaintiff.
The real question presented by this appeal is whether or not an employer, who directs an employee to work upon a scaffold erected under the direction of such employer, is liable because of defects in such scaffold which could not be ascertained by any human foresight or inspection or test of the same.
It is practically, conceded in the case at bar that the hanger or steel clamp broke without any fault which could have been discovered by the defendant. It was of proper size and dimensions; concededly, it was of the best quality of steel, and the evidence clearly indicates that the hanger’s delinquency in strength could only be ascertained after such hanger had been broken. After the breaking of such hanger it was discovered *247that there was a weak spot in it, and such as to render it incapable of sustaining the load which was to be put on it.
In my opinion, if such hanger had been duly tested, and it was found that such test complied with the provisions of the Labor Law, the defendant should not be held liable, and this brings us to a consideration of the proposition as to whether or net the Court of Appeals, in the case of Caddy v. Interborough Rapid Transit Co. (195 N. Y. 418), intended to hold and decide that an employee who goes upon a scaffold erected by an employer is entitled to recover from such employer the damages sustained by him irrespective of whether the defendant was or was not guilty of wrong or negligence in the premises.
I think it has not yet been held by the Court of Appeals that an employer who directs his employee to work upon a scaffold erected and constructed by such employer is liable to the injured employee as a matter of law and independent of any other circumstances.
In the case at bar it may be conceded that the defendant was ignorant of the strength or non-strength of the clamp or hanger which broke. That would be no defense under the provisions of the statute. It also may be conceded that all of defendant’s servants were careless in the erection and maintenance of the scaffold. That would be no defense, because under the statute the defendant in such case is charged with the duty of furnishing its employees a safe place in which to work and such duty cannot be delegated to another. But -.does this mean that in the case of scaffolding the employer is made an absolute insurer of his employee’s safety ? We think not, notwithstanding the language used in the case of Caddy v. Interborough Rapid Transit Co. (supra), which is: “Whenever a scaffold is furnished or caused to be furnished by an employer to be used in erecting, repairing, altering or painting a house, building or structure, it must be safe, suitable and proper, or the employer is liable.” If this language is given its full force and effect, then a defendant may be made in such case liable through no fault of his and so that he in no case could be relieved from liability in case his employee was injured. I understand that in the case of Ives v. South Buffalo Railway Co. (201 N. Y. 271) it was distinctly held that a statute which assumed to *248place a responsibility on a defendant in an action not resulting from fault on the part of such defendant, or which could have been prevented by him, was in violation of the Federal and State Constitutions, and, therefore, was void.
In the case at bar the evidence tended to show that no inspection which the- defendant could have made would have disclosed the defect which caused the -clamp or hanger in question to break.
The learned trial judge charged the jury, in substance, that notwithstanding no human ioresight, investigation or test could have discovered that the clamp or hanger in question was defective, yet the defendant, was liable for injuries sustained by its employee. In the case at bar the hanger in question was made of steel. Concededly, it was of sufficient size and dimensions, to sustain ten times the load put upon it. As a' matter of fact, because of crystallization at the point where it broke it was defective, but the evidence clearly demonstrates that such defect could not have been discovered except by breaking the clamp dr hanger.
I agree .that under sections 18 and 19 of the Labor Law (Consol. Laws, chap. 31; Laws of 1909, chap. 36) it is no defense to an employer to say that he did not know that a scaffold upon which he directed his employees to work was not safe or that his superintendent or foreman was careless in making or constructing such scaffold, but I do not think it follows that where an employer has used every precaution, as in this case, to make a scaffold safe, procured the best steel, made it of more than sufficient capacity to carry the weight intended to be put upon it and. used every means of inspection tending to show its capacity in that regard, such employer is nevertheless, responsible as matter of law for any .accident which may result to an employee in the use of such scaffold.
In this case the learned court below charged the jury, in substance, that the plaintiff could recover provided the accident happened without fault" on his .part. The learned trial court refused to charge upon the defendant’s request that it, the defendant, was not required to see to it. that the scaffold was “ absolutely" safe beyond the power of human foresight to anticipate disaster or to detect flaws or defects that could not be *249discovered by any known inspection or test.” In my opinion, if the language used in Ives v. South Buffalo Railway Co. (supra) is given its full force and significance, a statute which imposes liability upon a citizen for injuries which result without fault or wrong on his part is void because in violation of the Constitution. In the case at bar the learned trial court (See 72 Misc. Rep. 537) held, in substance, that the defendant was liable, as a matter of law, because the-scaffold in question fell, holding, in substance, that in such case the master was an insm’er of his employee’s safety and such holding was based upon the decision in Caddy v. Interborough Rapid Transit Co. (supra, at p. 419), which states: “ Whenever a scaffold is furnished or caused to be furnished by an employer to be used in erecting, repairing, altering or painting a house, building or structure, it must be safe, suitable and proper, or the employer is liable.” I think that such language, if given its full force and meaning, cannot be reconciled with the decision of the Court of Appeals in Ives v. South Buffalo Railway Co. (supra), which, as, we conclude, declares such provision unconstitutional and void.
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In this case, and it is an important one, if the judgment is affirmed, it will mean that any person employed upon a scaffold may recover for injuries resulting because of defects in such scaffold irrespective of what the employer may or may not have done to see to it that such scaffold is perfect in every respect. In other words, it makes the master an insurer of the safety of the employee and responsible for any injury which may come to him not occasioned by such employee’s own fault or negligence. I do not think that the Court of Appeals, in its decision in the case of Caddy v. Interborough Rapid Transit Co. (supra), intended to hold any such doctrine, and that in any event the doctrine that a defendant should be held liable for an accident which happens without fault on his part is repudiated in the case of Ives v. South Buffalo Railway Co. (supra).
The judgment and order appealed from should be reversed and a new trial granted, with costs to the appellant, to abide event.
Judgment and order affirmed, with costs.