Nasca v. St. Mary's Roman Catholic Church Society

Appellate Division of the Supreme Court of New York

Nasca v. St. Mary's Roman Catholic Church Society

248 A.D. 944, 290 N.Y.S. 439, 1936 N.Y. App. Div. LEXIS 8154

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 9, 1936

StatusPublished

Cited by3 cases

This text of 248 A.D. 944 (Nasca v. St. Mary's Roman Catholic Church Society) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Nasca v. St. Mary's Roman Catholic Church Society, 248 A.D. 944, 290 N.Y.S. 439, 1936 N.Y. App. Div. LEXIS 8154 (N.Y. Ct. App. 1936).

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Opinion

Judgment reversed on the law and new trial granted, with costs to the appellant to abide the event. Per Curiam Memorandum: 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 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.) Present — Sears, P. J., Taylor, Thompson, Crosby and Lewis, JJ.

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Judgment reversed on the law and new trial granted, with costs to the appellant to abide the event. Per Curiam Memorandum: 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 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.) Present — Sears, P. J., Taylor, Thompson, Crosby and Lewis, JJ.

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Bluebook (online)

248 A.D. 944, 290 N.Y.S. 439, 1936 N.Y. App. Div. LEXIS 8154, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nasca-v-st-marys-roman-catholic-church-society-nyappdiv-1936.

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