App. Div.] Second Department, April, 1908. LUCY M. RANDOLPH, Appellant, v. WILLIAM E. D. STOKES, Respondent. Second Department, April 24, 1908. Contract to support bastard - immoral consideration. An agreement by a putative father to pay a sum of money for the support of his illegitimate child is enforcible, although the support is to be furnished by the mother of the child. However, an agreement between a man and woman by which, in consideration of the assumption of illicit relations, he agrees to pay to her a sum of money each month for the support and maintenance of a child which he desires her to bear him is against public morals and void. AFPEAL by the plaintiff, Lucy M. Randolph, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Queens on the 20th day of June, 1907, upon the dismissal of the complaint by direction of the court after a trial at the Queens County Trial Term. Ralph H. Holland [George Gordon Battle, with him or the brief], for the appellant. Abraham Gruber [Theodore B. Chancellor with him on the brief], for the respondent. RICH, J.: At the close of the plaintiff's case the learned judge presiding at the trial dismissed the complaint on the ground "that the evidence does not constitute the cause of action alleged." The plaintiff had alleged that in the month of October, 1902, she, being at the time an unmarried woman, gave birth to a chid, of which the defendant was the father; that the defendant, for a good and valuable consid. eration, had repeatedly promised to pay plaintiff a handsome sum of money each month for the support and maintenance of the child; "that the defendant is a man of great wealth, and that a moderate and reasonable estimate of the proper allowance to be made the plaintiff, as aforesaid, for the support of the said child is the sum of five hundred dollars ($500.00) each month: that the defendant has failed, neglected and refused to pay such allowance to the plaintiff [Vol. 125. Second Department, April, 1908. for the support of the said child for a period of nine (9) months prior to the beginning of this action, and that there is now due and owing to the plaintiff from the defendant on that account the sum of four thousand five hundred dollars ($4,500.00).” It appeared from her evidence, given upon the trial, that the plaintiff met the defendant the first time pursuant to an appointment in June, 1900, was introduced to him, and immediately accepted his invitation to drive in the park. She was with him an hour upon this occasion, and during this time the defendant told her "he was very unhappy, and would be very glad to have some one that would be nice to him; that he would do anything in the world for such a person." The next evening she dined with him; she said, "he told me more things along the same line," and that it was one of the sorrows of his life that he had only one child. At the next interview "he still insisted that he would be very glad to take care of me - do anything in the world for me if I would be true to him." He brought up at that time the subject of a child. He said that "he was very anxious to have a child; that he had but one child, and he would not take that away from its mother; that if I would have a child by him he would do everything in the world for me and would support the child handsomely until the child was twenty-one years of age, and that it would not be necessary for me to take care of him." Sexual intercourse commenced then (in the summer of 1900) and a child was born in October, 1902. He The action is not to recover a sum claimed to have been advanced by the mother for the support of the child. The evidence shows that up to the time of the commencement of the action defendant had provided for its support and maintenance. was morally bound to do this, and there may be a way whereby the proper and suitable support of the child, brought into existence as the result of this wicked, immoral and shameful agreement, can be guaranteed and enforced; but that phase of the agreement is not presented by the pleadings. This action is to enforce the payment of a sum alleged to be due the plaintiff under an agreement to pay and allow to her a handsome and liberal sum of money each month for the support and maintenance of the child. Such a contract cannot be recognized as valid and binding as between these parties. It is against public morals. The consideration for the agreement App. Div.] Second Department, April, 1908. on the part of the defendant was that the woman should submit to his immoral desires. She was satisfied if the offspring would be handsomely and liberally taken care of out of money paid to her by the defendant. Such a contract cannot and ought not to be enforced. It has been held repeatedly that an agreement by a putative father for the support of his illegitimate child is enforcible, and in Hook v. Pratt (78 N. Y. 371) Judge RAPALLO said: "There is nothing illegal in an undertaking by a putative father to support his illegiti mate child; or to pay a sum of money in consideration of such support being furnished by another, though it be the mother of the child." But this action is brought for no such purpose; it is to recover upon an agreement alleged to have been made in part as an inducement to plaintiff to enter upon a career of illicit intercourse, and such an action may not be maintained. The judgment must be affirmed, with costs. WOODWARD, JENKS, HOOKER and MILLER, JJ., concurred. Judgment affirmed, with costs. WILLIAM II. CADDY, Appellant, v. INTERBOROUGH RAPID TRANSIT COMPANY, Respondent. Second Department, April 24, 1908. Labor Law - statutory construction "structure" defined - negligence - injury on scaffold - height of scaffold. A scaffold consisting of single planks resting on the rungs of painters' ladders erected in a car barn around the sides of a street car in order to repair the roof of the car is "furnished" for the performance of labor in the repair of a "structure" within the meaning of section 18 of the Labor Law (Laws of 1897, chap. 415), which prohibits the erection of unsafe or unsuitable scaffold, hoists, etc., for the use of employees erecting, repairing or altering "a house, building or structure." The word "structure" in said section is not limited by the use of the words "house" and "building" to structures ejusdem generis, but includes all structures which like a "house" or "building," require the use of scaffolding, hoists, etc., in their construction, alteration or repair. The statute was not intended for the protection of any particular class of mechanics, but to guard against the dangers arising from defective scaffolds. The height of a scaffold above the floor is not controlling, for it cannot be said that a scaffold must be at a given height to make the statute applicable. Second Department, April, 1908. [Vol. 125. APPEAL by the plaintiff, William H. Caddy, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 26th day of June, 1907, upon the dismissal of the complaint by direction of the court after a trial at the Kings County Trial Term. Charles M. Davenport [Harry E. Lewis with him on the brief], for the appellant. Bayard H. Ames [Charles A. Gardiner with him on the brief], for the respondent. MILLER, J.: This is a master and servant negligence case. The complaint was dismissed at the close of the case. The plaintiff was a carpenter, and at the time of the accident was engaged in repairing one of the defendant's cars in its repair shop. The car was fortyseven feet long, eight feet six inches wide, and in the position in which it was placed for repairs its roof was sixteen feet from the shop floor. A staging or scaffolding consisting of single planks resting on the rungs of painters' ladders was constructed on three sides of the car. The plaintiff, who had nothing to do with the construction of the scaffolding, was standing upon it repairing the roof of the car when a plank broke by reason of a defect and precipitated him to the floor, causing the injuries of which he complains. There is testimony indicating that the scaffold was eight feet from the floor, but it must have been higher than that to enable the men to work on a roof sixteen feet from the floor. While several questions are discussed by counsel, only one requires consideration, i. e., does section 18 of the Labor Law (Laws of 1897, chap. 415) apply? The solution of this question depends on whether the car and the scaffold were respectively a structure and a scaffold within the meaning of the statute. If said statute applies, the plaintiff was not guilty of contributory negligence as matter of law for assuming that the master had discharged its duty; if it does not apply, he cannot recover for the reason that the negligence was that of coservants. The statute provides that: "A person employing or directing another to perforın labor of any kind in the erection, repairing, App. Div.] * * ،،* Second Department, April, 1908. altering or painting of a house, building or structure shall not furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders or other mechanical contrivances which are unsafe, unsuitable or improper, and which are not so constructed, placed and operated as to give proper pro. tection to the life and limb of a person so employed or engaged. The respondent contends that the word "structure" must be given an ejusdem generis interpretation, and that as limited by the words "house" and "building," it does not include a car. I do not think the Legislature had in mind any particular kind of structure when it passed said statute. The evident purpose of the statute was to insure better protection to workingmen, whose work requires them to use scaffolds, hoists, stays, ladders or other like mechanical contrivances, under such circumstances as would imperil life or limb if the contrivance used were unsafe or insecure, and the word "structure" was intended to include all structures which, like unto a house or building, require the use of scaffolds, hoists, stays or ladders in their construction, alteration or repair. So the statute has been held to apply to a vessel (Chaffee v. Union Dry Dock Co., 68 App. Div. 578); to the anchorage pier of a bridge (Flannigan v. Ryan, 89 id. 624); to a scow (Madden v. Hughes, 104 id. 101); it has been held not to apply to ordinary staging consisting of boards laid on horses from four to six feet high, put up in a room to facilitate the placing of fixtures (Schapp v. Bloomer, 181 N. Y. 125); to a like staging moved from place to place to wash the ceiling of a room Stokes v. New York Life Ins. Co., 112 App. Div. 77); to a like staging moved from place to place and readjusted by the plaintiff and his fellow-workmen (Williams v. First National Bank, 118 App. Div. 555). The decision in Sutherland v. Ammann (112 App. Div. 332), cited by respondent, was put upon the ground that the scaffold was not used in the work of erecting, repairing, altering or painting. If this car had been a permanent structure built out of doors, we should have no doubt that it was included within the terms of said statute; can it matter that it was within a building, and that after it was constructed (or as in this case repaired) it was to be put on wheels and moved? The character of the work and the danger from defective scaffolding were the same in either case, and that was what the statute was intended to guard against. Said |