Opinion
December 23, 1936.
Present — Sears, P.J., Taylor, Thompson, Crosby and Lewis, JJ. [See 248 App. Div. 944; ante, p. 710.]
Upon reargument, judgment reversed on the law, and new trial granted, with costs to the appellant to abide the event.
Mahoney, defendant's janitor, is claimed by plaintiff to have represented defendant in negotiating the contract and in carrying on the work. If this claim be correct Mahoney 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.) 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.)