Appellate Division of the Supreme Court of New York, Second DepartmentMay 24, 1943
266 App. Div. 802 (N.Y. App. Div. 1943)

May 24, 1943.

Action by Rosario Zuco to recover damages for personal injuries suffered when struck by an iron beam which fell from the floor above the one upon which he was working as a bricklayer's helper in an apartment house under construction; and by his father for loss of services. Judgment entered on the dismissal of the complaint against the three respondents at the close of the entire case affirmed, with costs. The uncontradicted proof, if indeed it is not conceded, is that the building in course of construction in which the accident happened was what is known as a "wall-bearing" job. The testimony of the witness Marino is incredible as a matter of law. ( Matter of Case, 214 N.Y. 199; Bank of United States v. Manheim, 264 N.Y. 45.)

Hagarty, Carswell, Johnston and Adel, JJ., concur;

As plaintiffs' complaint was dismissed at the close of the case, they are entitled to the most favorable inferences that may be drawn from the evidence. Applying that test, the jury could have found that the steel workers were permitted to erect steel columns to support the sixth floor before the fifth floor had been planked over, as required by subdivision 4 of section 241 Lab. of the Labor Law. This statutory duty is absolute and nondelegable. Every owner and general contractor who fails to perform it is guilty of negligence as a matter of law where, as here, a causal connection is established between the failure to perform the duty and the accident causing the injury. In addition, the owner of a building under construction, acting as general contractor, is under a duty to an employee of a subcontractor to use reasonable care to furnish such employee with a reasonably safe place to work. ( Caspersen v. La Sala Bros., 253 N.Y. 491; Hooey v. Airport Construction Co., 253 N.Y. 486.)