(dissenting). The defense of assumption of risk is pleaded in general terms. It is assumed that it is based on the amendment of section 202 of the Labor Law in 1937. Whether it is so based or not, I think it may not be said, in this motion on the pleadings, that such defense is not valid. The amendment adopted by the Legislature may not be entirely ignored. It represented some legislative purpose. Nor may it be positively asserted that a breach of statutory duty, followed by injury, presents for trial only the question of the measurement of damage. Proof of the breach and injury may make a prima facie case of liability, but it does not preclude the interposition of defenses to show that the breach was not the proximate cause of injury. The question of ultimate liability should await proof on the trial.
Adel, J., concurs.
Order affirmed, with ten dollars costs and disbursements.