Opinion
April 27, 1942.
Present — Lazansky, P.J., Hagarty, Johnston, Adel and Close, JJ.
Plaintiff, an employee of a subcontractor, fell when about to ascend a ladder which was generally used as a means of access to a building under construction. The defendants are the owner, its agent and builder, and subcontractors, one of whom erected the ladder. Judgment dismissing the complaint unanimously affirmed, with costs to respondents Hernandez Contracting Co., Inc., Wielandt Construction Company, Inc., and one bill of costs to respondent Barr Lane, Inc., and New York School for the Deaf. The ladder had been used by plaintiff and other workmen as a means of access for eight or ten days prior to the happening of the accident. There had been no indication, during this time, that it was in any way unsafe. Plaintiff found it secure at all times prior to the accident. It was secure fifteen minutes before the accident occurred, when he used it to descend. It was then firmly placed and firmly fixed. There was no showing that the ladder was in any way defective. The only inference which may be drawn is that within the period of fifteen minutes prior to the happening of the accident, the ladder had been taken out of position so that its lower ends were not evenly placed or its top was not flush against the side of the building, or both. Under such circumstances there is no actionable negligence in the absence of notice. ( Dougherty v. Weeks Son, 126 App. Div. 786; Wynn v. Carlin, 135 id. 795.)