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about 40 feet long, hung with a block and fall from the bridge and a belly line in the center. The spars were about 16 feet apart, and crossplanks were laid across them, two together, at intervals, on which laid the planks forming the flooring of the scaffold, running in the same direction as the spars. The block and fall on top, where connected with the girder, was what is known as a "two-sheave block," and there was a single sheave block connected to a sling on the end of each spar, and the center or belly line was made fast to the iron work of the bridge and extended down to the center of each spar, where it was fastened.

The accident occurred on Tuesday, December 10, 1912, at about 4 o'clock p. m. The scaffold was constructed by four riggers, of whom the deceased was one, and finished at about 10 o'clock in the forenoon of the preceding Saturday, and had been used by the defendant's painters, some 20 in number, without accident during the interval after its completion. At about half past 2 or 3 o'clock on the day of the accident, the painting at that point had been finished, and orders were given to dismantle the scaffold. Workmen were sent up to lower the plank used in its construction, which was done by means of a rope called a “heaving line.” One plank was left, by order of the foreman, for use in steadying the spars while taking off the center lines. The deceased and one Haynes were then directed to remove these lines, preparatory to lowering the spars with the blocks and tackle. The manner of doing such work was for the men to sit on the spars (astride) at the end, with the plank in front of them resting on the spars on which they were sitting. They would then lift themselves clear of the spars by means of the plank, and hitch themselves along on the spars towards the center, pushing the plank in front of them. Haynes and the deceased, following this method, had reached the center of the two end spars. The deceased unloosened the center line of the

he was on, and as he started to go on the spar tilted and one end dropped, throwing him to the ground and causing injuries resulting in his death. It appears that the fall of the spar was due to the negligence of Collins, a fellow servant of the deceased, who aided in constructing the scaffold, and who, before the day of the accident, in making a change in the tackle at the end of the spar, cut off the mousing from the back of the hook and neglected to replace it, or, if it was replaced, left it untied and unfit to hold the spar-supporting strap securely in the hook. The evidence tends to support the conclusion that he placed the supporting strap in this hook improperly and in such a manner that it was liable to come out of the hook exactly as it did when the spar fell.

[1,2] For the negligence of Collins the defendant was not liable, and the learned trial court properly held that upon the uncontroverted facts the plaintiff could not maintain her action as one at common law. It was further held that the accident happened while the scaffold was not in use as a scaffold, after the completion of the painting, and while the deceased and his fellow workman were engaged in the last part of the work of dismantling it, and the case therefore was “not one in which the scaffold provision of the Labor Law is applicable." In reaching this conclusion the learned trial court overlooked the dis

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tinguishing fact which, in my judgment, differentiates the case at bar from those where the accident was caused by a defect due to the dismantling of the scaffold. The jury might have found that the accident resulted from the defective, insecure, and improper fastening of the end of one of the spars forming part of the scaffold and the foundation upon which its flooring was laid, as originally constructed and maintained. While it is true that the scaffold did not fall while beng used by the painters, it is equally true that at all times after its completion it was within the condemnation of the provision of the Labor Law relating to scaffolds. The jury would have been justi: fied in finding that it was, from the time of its construction, an unsafe, unsuitable, and improper scaffold, not so constructed as to give proper protection to the life and limb of workmen using it, and was so maintained by the defendant until the deceased was injured, and that he was injured in consequence of the improper and unsafe construction, which was the proximate cause of his injury. I regard Jones v. Gamble, 140 App. Div. 733, 126 N. Y. Supp. 143, an authority for holding the case to be within the statute. The plaintiff was therefore entitled to have her case submitted to the jury.

[3] It is contended by the respondent that the foreman, in ordering the deceased and his coworker to remove the center fastenings, directed them to get a ladder for that purpose, and the fact that they did not comply with such instruction precludes the plaintiff from recovering damages for the death of her intestate. It appears that there was no ladder at the place where the deceased was working suitable for use in the work he was directed to do. There was only one 20-foot ladder on the job, and the scaffolding to be reached was from 30 to 35 feet from the ground. Defendant's foreman testified that their yard, where their appliances were kept, was about four blocks distant from the place where the work was being done, and that in the yard were rung ladders long enough to reach the scaffold. It seems to me that the failure to get a ladder, if directed, is limited in its effect to establishing contributory negligence on the part of the deceased, which was likewise a question for the jury. Besides this, it does not appear that the deceased heard, or was where he could have heard, the direction, if given, or that he knew of the existence or location of the yard.

As these conclusions make a new trial necessary, it is unnecessary to consider the other questions presented, with the exception of calling attention to the fact, for the guidance of the trial court, that the rule of law relied on by the appellant to sustain her contention, that the customary methods of constructing and dismantling scaffolds were competent in determining the question of fact whether the devices furnished and precautions taken in this particular case were such as were in customary and general use for the same purposes, is applicable only in an action at common law to determine the negligence of the master, and the contention is therefore without merit or force, as a recovery at common law cannot be had in this action, and the testimony offered upon this subject was properly excluded.

Judgment reversed, and new trial granted; costs to abide the event.

All concur.

PEOPLE v. MCILWAIN.

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(Delaware County Court. January 4, 1915.) 1. SCHOOLS AND SCHOOL DISTRICTS (8 159*)-NOTICE OF REQUIREMENT.

Where the trustee of a school district personally notified parents of pupils that the vaccination laws would be enforced, there was a sufficient compliance with Public Health Law (Consol. Laws, c. 45) $ 310, requiring 10 days' notice of a resolution to exclude unvaccinated pupils.

[Ed. Note.-For other cases, see Schools and School Districts, Cent.

Dig. § 329; Dec. Dig. $ 158.*] 2. SCHOOLS AND SCHOOL DISTRICTS ($ 173*)-OFFENSES-DEFENSES.

Education Law (Consol. Laws, c. 16) § 621, provides that all children between the ages of 8 and 14 shall attend school during the entire school term. Section 624 declares that parents or guardians shall cause children to attend for instruction as required by law. By Public Health Law, $ 310, school pupils were required to be vaccinated. Held, that the parents or guardians of children, excluded from the schools because not vaccinated, cannot excuse their failure to have such children attend school, or to furnish them with instruction, on the ground that the children were sent to school, but were excluded.

[Ed. Note.-For other cases, see Schools and School Districts, Cent. Dig.

§ 344; Dec. Dig. § 173.*] 3. SCHOOLS AND SCHOOL DISTRICTS ($ 158*)-CRIMES-EVIDENCE.

Public Health Law, $ 310, declares that no child or person not vaccinated shall be admitted into any public school, and that the officers may adopt a resolution excluding such children, and shall announce that due provisions have been made for the vaccination of any child desiring to attend school whose parents or guardians are unable to procure vaccination, or who are by reason of poverty exempted from taxation. Section 311 provides for the appointment of a physician by the trustees or board. Held, that the provision of the statute requiring vaccination is mandatory, although the provision relating to the appointment of a physician by the trustees is discretionary; hence accused cannot excuse his failure to have his children vaccinated, so that they could attend school, where he did not furnish them with instruction elsewhere.

[Ed. Note.-For other cases, see Schools and School Districts, Cent. Dig. § 329; Dec. Dig. 8 158.*)

Appeal from Justice Court.

William D. McIlwain was convicted in the Justice Court of crime, and he appealed to the County Court. Conviction affirmed.

O'Connor & O'Connor, of Hobart, for appellant.

H. J. Hewitt, Dist. Atty., of Delhi (Andrus & McNaught, of Stamford, of counsel), for the People.

RAYMOND, J. This proceeding was instituted by the laying of an information by Calvin Peters, as truant officer of school district No. 12 of the town of Harpersfield, Delaware county, N. Y., before Howard A. Dyckman, Esq., a justice of the peace of the town of Harpersfield, N. Y., charging the defendant with having committed the crime of misdemeanor, in that he had failed to cause his two children, Ethel McIlwain and Morris McIlwain, who are between the ages of 7 and 16 years, to attend upon instruction as provided in section 624 of the Education Law of the state of New York. A warrant was thereupon

•For other cases see same topic & S NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

issued on the 27th day of October, 1914, and the defendant arrested and brought before the magistrate above named. Thereafter such proceedings were had and taken that the said William D. McIlwain was tried before said Howard A. Dyckman, Esq., justice of the peace, and a jury, and found guilty of the crime of misdemeanor charged, and fined by said magistrate the sum of $5, according to the provisions of section 625 of the Education Law of the state of New York, and in default of the payment of said fine that he be imprisoned until the same be satisfied, not to exceed five days. Thereafter such proceedings were had and taken that the defendant obtained a certificate froin the County Judge of Delaware county, allowing an appeal from the conviction of said William D. McIlwain to the County Court of Delaware county, and the same has been duly submitted by the attorneys for the respective parties thereto, and is now before me for decision.

It appears from the evidence in the case that prior to the opening of the school in school district No. 12 the trustee personally notified the appellant and all other parents of children residing in said district that the provisions of the Public Health Law in relation to vaccination and the Education Law in relation to attendance would be enforced in said district. It also appears from the evidence that neither of the children of the appellant had been vaccinated, which fact is also apparent from the health certificate made by Dr. Craig, a reputable physician living in that locality. After affording the appellant a reasonable opportunity to comply with the law, the trustee instructed the teacher, a Miss Smith, to exclude the children from school, and notified them that they could not attend until vaccinated. It further appears that the children were then absent from school 7 days, between October 19th and October 27th, when this proceeding was instituted. There is no claim made on the part of the defendant, and the evidence conclusively establishes the fact, that the children did not receive instruction equivalent to that furnished by the school in such district, outside of said school.

The appellant's attorneys, in their brief submitted to this court, urged the reversal of the judgment of conviction upon three grounds: (1) That it appeared by the evidence that the defendant did not at any time refuse to send his said children to school, but that, on the contrary, he caused them to go to school, and that they had been sent home from said school by the teacher thereof, and told that they would not be admitted into said school until they had been vaccinated. That the defendant had refused to have said children vaccinated, and that therefore he was not guilty of the crime of having violated section 624 of the Education Law. (2) That it appeared by the health certificate introduced in evidence by the people on the trial that each of the said children of the said William D. Mcllwain was subject to chronic sore throat, pharyngitis, and other throat diseases, and that the defendant sought to prove by Dr. Mowbray, a duly licensed and practicing physician and surgeon, that the vaccination of the children would under these circumstances be liable to result in serious injury to the health of said children, and that said evidence was excluded against the objection of the counsel for said defendant. (3) That Irving Dayton,

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who was the sole trustee of school district No. 12 of the town of Harpersfield, Delaware county, N. Y., had not adopted a resolution excluding children and persons not vaccinated from attending school, and did not give the 10 days' notice of said resolution as provided by section 310 of the Public Health Law of the state of New York.

[1] As to the first proposition urged in behalf of the defendant, the same seems to be fully covered by the evidence, and it is true thai the defendant did not at any time refuse to send his children to school, but did refuse to have them vaccinated. As to the second proposition, as to the defendant's right to introduce the evidence sought to be introduced by him as to the information of Dr. Mowbray as to what effect vaccination would have on defendant's children, I think it was properly excluded by the justice. In regard to the third proposition, it seems that Irving Dayton was-sole trustee of the school district, and, while he did not in any way adopt a resolution, he did personally give notice to the inhabitants of the district and to the defendant that unless he complied with the vaccination law that his children would be excluded from the school, which notice, I believe, was a sufficient compliance with the requirements of the Education and Public Health Laws.

[2] The fact that the defendant sent his children to the schoolhouse some of the days during the period in question was no defense, and did not relieve him from the penalty imposed by the statute. The proceeding here was for the purpose of imposing a penalty upon the defendant for failure to comply with the requirements of the Education and Public Health Laws. The state, speaking through the Legislature, had enacted a requirement (section 621 of the Education Law) that all children between the ages of 8 and 14 years shall attend school during the entire time the school in the district shall be in session. Section 624 of the Education Law provides that it shall be the duty of the parents or guardians of such children to cause the children to attend upon instruction as required by the law. The public school system is free, and the state, in maintaining it and affording all the children an opportunity for an education, imposes certain conditions to be complied with to entitle such children to attend. If the conditions are not complied with, the right to enjoy the benefits of the free public school does not exist, and the parent must furnish equivalent instruction elsewhere.

In this case the defendant did not cause his children to comply with the conditions imposed by the state to entitle them to attend school, did not furnish equivalent instruction elsewhere, but insisted upon his right to send them to school as he saw fit. This assertion upon his part of a right to exercise his individual judgment did not set the statute aside, and the fact that he sent the children to the schoolhouse is no defense whatever, for he did refuse to send them to school, prepared to attend, as the law requires, and he did fail and refuse to furnish them equivalent instruction to that which they would receive in the school. The Appellate Division of this department, in an opinion written by Judge Sewell in the case of Shappee v. Curtis, 142 App. Div. 155, 127 N. Y. Supp. 33, being a similar case, where

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