Healy v. Burke

McAdam, P. J.

In view of the rule that at the close of the. plaintiff’s case he is entitled to all the inferences in his favor legitimately deducible from the proof (Baylies Trial Pr. [2d ed.] 309), we think that on the question in issue — defendant’s negligence, and plaintiff’s freedom from contributory negligence — the plaintiff proved a prima facie case, and that the complaint should not have been dismissed.

The opinion of the court below seems to correctly note the rule applicable to scaffolds since the enactment of the Labor Law (Laws of 1897, chap. 415), which extends the common-law liability. Stewart v. Ferguson, 34 App. Div. 515, 52 id. 317; affd., 164 N. Y. 553; Rettig v. Fifth Ave. Transportation Company, 6 Misc. Rep. 328; affd., 144 N. Y. 750.

The order appealed from will therefore be affirmed, with costs. As the defendant has, in the event of affirmance of the order of the General Term, stipulated for judgment absolute, the cause is remitted to the court below for assessment of the plaintiff’s damages.

MacLean and Scott, JJ., concur.

Order affirmed, with costs.