The Vanderbilt Avenue Realty Company was constructing an apartment house at 44 East Forty-eighth street in the borough of Manhattan. The defendant Paterno Construction Company had the general contract. Adam Happel, Inc., had a subcontract for the iron work in the building and the plaintiff was in its employ. The Happel Company at first constructed the freight elevator with too low a headway and they subsequently changed the headway from six to nine feet. It was in the progress of this work that plaintiff received his injuries. The building had been substantially completed when this work was done and the elevator in question was being used to carry furniture down from the main floor’ of the building. There were some tenants in the building and the elevator had been used and was .being used to carry furniture for them at the time of the accident. The plaintiff *765with another workman had been at work some two days before the accident, in taking out the door jambs or “ bucks ” and putting in longer ones. They had used two horses about four feet high with some planks across from one to the other, and when they completed the work on that day they removed the horses and planks and did not use them again except that they used one of the horses on the day of the accident to stand on to plumb the door jambs when requested by the superintendent of the Paterno Company. After the plaintiff and his coworker had finished the work of plumbing the door jambs and about ten minutes before the accident they removed the horse to the end of the hallway. They then proceeded to get their lunch and as the plaintiff was to go outside the building for that purpose he passed down the hallway and opposite the open elevator doorway met a colored man carrying a trunk on his back. The trunk slipped from the colored man’s back and striking the wall pushed the colored man against the plaintiff who fell down the unguarded elevator shaft.
There was some evidence that the defendant had furnished a railing guard, i. e., two uprights with a cross board three or four feet from the floor to guard, this elevator opening. The plaintiff and his witness testified there was no such barrier or guard.
The trial judge charged the jury: “The Labor Law provides that shafts and openings on each floor of a building or elevator shall be enclosed on all sides by a barrier at least eight feet in height, while such work is in progress as was in progress upon this building, and if you find that there was a failure to provide such a barrier and that there was lack of reasonable care in such failure, that would be evidence of negligence on the part of the defendant.” At the end of the charge and on the request of the plaintiff’s counsel the court read the Labor Law section referred to and the defendant’s counsel excepted to the charge concerning the Labor Law as having any application to the building in question. The building was substantially completed. The elevator in question had been entirely completed and the doors had been put in place when the owner wanted the change made to increase the head room of the doorway. There was apparently no work going on about the unguarded *766elevator opening that would make the Labor Law with its definite requirements applicable. (See Labor Law, § 20, as amd. by Laws of 1913, chap. 492. Since amd. by Laws of 1919, chap. 545.)
This charge was error, and it becomes, more important in view of the very narrow limits the trial judge gave to the duty of the defendant when he charged “ was this defendant negligent in failing to put a guard across this opening between the time when the plaintiff left it and the time when he fell? ” The jury might very well' have found under this combination of charges that the defendant had provided the guards required by the Labor Law, but that it had not put the barrier there within the ten minutes before the plaintiff fell in the shaft. It would be error to Submit to the jury whether it was negligence for the defendant to fail to replace, in so short a time as ten minutes, proper barriers which it had provided, particularly when it had no notice that the plaintiff had left the place in question unguarded. From the charge as made, this is what the jury was permitted to do, and for this error the exceptions are sustained and a new trial ordered, with costs to the defendant to abide the event. We deem that the question of contributory negligence was properly submitted to the jury.
Clarke, P. J., Page and Greenbatjm, JJ., concur; Dowling, J., dissents.
Exceptions sustained and new trial ordered, with costs to defendant to abide event.