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BERNSTEIN v. EL-MAR PAINTING & DECORATING CO., INC.

13 N.Y.2d 1053 (1963)

George Bernstein, Respondent, v. El-Mar Painting & Decorating Co., Inc., Appellant, and Jack Berman et al., Appellants-Respondents.

Court of Appeals of the State of New York.

Decided November 27, 1963.

Attorney(s) appearing for the Case

Lazarus I. Levine for appellant.

James M. McLaughlin, Jr., for appellants-respondents.

Bernard Meyerson for respondent.

Chief Judge DESMOND and Judges DYE, BURKE and FOSTER concur in Memorandum; Judges FULD, VAN VOORHIS and SCILEPPI dissent and vote to reverse the judgment against defendants Berman and to dismiss the complaint against them upon the ground that the evidence was insufficient to establish any negligence as to them.

MEMORANDUM.

The plaintiff, having followed the instructions of the painters in mounting the scaffold, cannot be held to be negligent as a matter of law. (Zurich Gen. Acc. & Liab. Ins. Co. v. Childs Co., 253 N.Y. 324; Meyer v. West End Equities, 12 N.Y.2d 698; Hamblet v. Buffalo Lib. Garage Co., 222 App. Div. 335.)

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