Opinion
October 9, 1936.
Present — Sears, P.J., Taylor, Thompson, Crosby and Lewis, JJ.
Judgment reversed on the law and new trial granted, with costs to the appellant to abide the event.
Mahoney, defendant's janitor, represented defendant in negotiating the contract and in carrying on the work. He was an interested witness and under the well-established rule his credibility was subject to the scrutiny of the jury. Respondent's contention that section 240 Lab. of the Labor Law applies to a relationship of employer and employee but not to that of owner and independent contractor is not sound. ( Lester v. Graham, 157 App. Div. 651.) So whether decedent was an employee of defendant or a member of a copartnership which was an independent contractor is of material importance. We are of the opinion that the question whether Mahoney in obtaining and furnishing the scaffold represented defendant or a copartnership composed of decedent and his associates as an independent contractor was fairly for the determination of the jury under all the testimony. Therefore, the direction of the verdict was erroneous. All concur. (The judgment is for defendant in an action for damages for death of intestate caused by a defective scaffold.)