(dissenting in part). I concur in the dismissal of the complaint against Monroe Lawrence Construction Corporation and against Clarence Parker and James L. Gritsman, doing business under, the name of A & P Crane Rental Co., but consider that the complaint ought also to be dismissed against Habern Realty Corporation. The sole, efficient producing cause of the accident was the breaking of the “ choker ” cable, for which Habern was not responsible, causing one and one half tons of stone to be dropped for three feet before striking the frame bridge over the sidewalk. The bridge was not supposed to withstand that kind of a shock, nor would it have made any difference if it had beep, constructed with the ¡additional sup*441porting joists which would have qualified it for the storage of materials under the Administrative Code. The purpose of paragraph (b) of subdivision 2 of section C26-557.0 was not to avert this ldnd of a catastrophe. This bridge would have collapsed regardless of whether it had been loaded with stone, or, being loaded, if it had been constructed to carry a load of 300 pounds per square foot. The violation of the Administrative Code had no causal connection with the accident. The bridge did not fall because of storage of materials upon it in violation of the code; it was demolished when hit by a battering ram with a force approximating that of a pile driver.
It is not an answer to say that plaintiff’s intestate was injured by the falling upon him of stone which had been stored upon the bridge, unless the jury could have found that the bridge would not have fallen if it had been constructed to support a weight of 300 pounds per square foot. The code allows the storage of stone on such a bridge. It is apparent that this bridge would have collapsed just as quickly if it had been built to support the 300 pounds per square foot of weight. There was no duty to build a structure strong enough to catch falling slabs of granite.
If it were argued that the record is without expert testimony that the planks and joists forming a 300 pound per square foot bridge of this character, piled with stone as the Administrative Code permitted, would have collapsed, it would be a sufficient answer that there is no testimony that such a bridge could possibly have withstood this tremendous force. The burden is upon plaintiff to prove that storing stone on the 150 pounds per square foot bridge as directed by Tully (manager of Habern), was a cause of the accident. The circumstance that a section of the Administrative Code was violated creates no presumption of a causal relationship between the violation and the accident. The test of whether a causal relation existed, is whether the result would have been different if the ordinance had been complied with — that is, if the conditions were the same except for a bridge built to support 300 pounds per square foot. Even if the inference, necessary to a recovery by plaintiff, were merely doubtful or uncertain that a bridge built to uphold 300 pounds per square foot, piled with stone, would have withstood the shock, then plaintiff would have failed to sustain the burden of proof on the subject of causation, and the complaint should be dismissed as in any case where an essential fact is established only by speculation.
*442How far the trial went awry is shown by the circumstance that the jury found that the “ choker ” wire cable, which dropped the stone from the crane, was reasonably safe for the purpose for which it was being used at the time of the accident. This accorded with the apparent object of the action, which was to circumvent the Workmen’s Compensation Law. Plaintiff’s intestate doubtless was entitled to draw workmen’s compensation during the time while he lived and was incapacitated by the accident, and plaintiff would be entitled to recover a death benefit if it could be established that the accident caused him to die from cancer, but only by a strained construction of the facts can it be held that plaintiff has proved a common-law cause of action.
The judgment appealed from should be reversed and the complaint should be dismissed.
Peck, P. J., Glennon and Shientag, JJ., concur with Callahan, J.; Van Voorhis, J., dissents in part, in opinion.
Judgment as to Monroe Lawrence Construction Corporation and its cross claims affirmed, with costs; judgment against the A & P Crane Rental Co. reversed and the complaint, as to it, dismissed, with costs; A & P Crane Rental Co’s, appeal as to its cross complaint dismissed; judgment against appellant Habern Realty Corporation and the dismissal of its cross claim against United Stone Works, Inc., reversed, and a new trial ordered as to same, with costs to abide the event. Settle order on notice.