Plaintiff, a painter, was working on a scaffold that rested on cables stretched under *648the elevated railroad structure on Liberty avenue in the borough of Queens. Under it was suspended a strip of canvas for the purpose of catching the rust and dirt that plaintiff was removing preparatory to painting. As the work progressed, the accumulation of rust and dirt caused the canvas to sag several feet below the level of the scaffold. Defendant’s milk truck, ten feet eleven inches high, approached from the east and struck the canvas, oscillating the scaffold and throwing plaintiff to the street. For the serious injuries sustained he" received a verdict for $33,000. Defendant appeals from the judgment. Judgment reversed on the law and the facts and a new trial granted, costs to appellant to abide the event, on the ground that it was error for the court to refuse to charge as requested at folios 1137 and 1138, and on the further ground that the determination of the jury was against the weight of the evidence. Lazansky, P. J., Carswell and Johnston, JJ., concur; Hagarty and Davis, JJ., dissent and vote to affirm.