Opinion
August 1, 1961
Appeal from a judgment entered on the verdict of a jury rendered at Trial Term, Supreme Court, Rensselaer County. Although it is sharply disputed factually, sufficient proof appears in the record that appellant church hired plaintiff to repair a building to permit a jury under proper instructions to find that plaintiff was an employee and therefore to consider and apply the rule set up by section 240 Lab. of the Labor Law, governing responsibilities of an employer to an employee. This section, among other things, requires that ropes shall be "furnished" or "caused to be furnished" by an employer repairing a building, to give "proper protection" to an employee using them in such repairs. There is proof a rope which could be found to have been "furnished" by the church "parted" while plaintiff was using it and that this caused his fall in connection with taking down a scaffold used in building repair. Whether this failure was due to the way it was tied or to some defect in it which could be found by the jury to render it insufficient intrinsically to afford "proper protection" within the statute, is a question left largely to inference on this record and one which requires very precise instructions to the jury, since it is one of the crucial factual questions in the case. Upon such a close record as this, the persistent insinuation by plaintiff's counsel before the jury of the liability insurance coverage of the appellant church was prejudicial. The reintroduction of this subject, which had been justified in the first place by counsel on the ground the proof tended to show the "control" of the church building, even after control was formally conceded in the record, seems to have accentuated the prejudice. Judgment reversed on the law and the facts and as a matter of discretion, and a new trial ordered, with costs to appellant to abide the event. Bergan, P.J., Gibson, Herlihy, Reynolds and Taylor, JJ., concur.