Opinion
Argued December 3, 1926
Decided December 31, 1926
Appeal from the Supreme Court, Appellate Division, Second Department.
Benjamin C. Loder and John H. Scully for appellant.
Julius F. Newman for respondent.
The action is to recover damages for injuries resulting in death.
Plaintiff's intestate was employed by the Consolidated Window Cleaning Corporation which had a contract with the defendant, the Pratt Institute, for the cleaning of windows. He was sent by his employer to the defendant's building, constructed and then in use as a school. While standing on the outer ledge of one of the windows he fell to his death. A few of the windows were fitted with hooks for the safety belts of cleaners. Other windows were without hooks. There were none at the window where the man was standing when he fell. A rule of the Industrial Board, adopted in pursuance of the Labor Law (Cons. Laws, ch. 31; Schumer v. Caplin, 241 N.Y. 346), says that hooks shall be installed in buildings used for factories or mercantile establishments. By concession these classes do not include defendant's school. The cause of action cannot be built, nor does the plaintiff try to build it, upon a violation of the ordinance. The question is whether a cause of action exists at common law.
The absence of hooks was obvious to the worker the moment that he stood upon the ledge. There was no hidden defect accentuating the danger. An owner of a building may owe as great a duty to the invited servant of another as he does to his own servant. He does not owe a greater one ( Hess v. Bernheimer Schwartz Brewing Co., 219 N.Y. 415, 418). The risk was assumed when the cleaner continued at the work ( McLean v. Studebaker Bros. Co., 221 N.Y. 475, 478; Collelli v. Turner, 215 N.Y. 675). There is no question here of the breach of any statutory duty ( Fitzwater v. Warren, 206 N.Y. 355). The plaintiff sues at common law. The defendant's liability is unaffected by the statute (Labor Law, §§ 201, 202; Collelli v. Turner, supra).
We are not required to consider other objections to the recovery which were pressed upon us at the bar with earnestness and force.
The judgment of the Appellate Division should be reversed, and that of the Trial Term affirmed, with costs in the Appellate Division and in this court.
HISCOCK, Ch. J., POUND, McLAUGHLIN, CRANE, ANDREWS and LEHMAN, JJ., concur.
Judgment accordingly.