(dissenting). The majority of the court in reversing a judgment obtained by an injured workman and dismissing’ his complaint is holding that upon the facts here presented the owner — Dun & Bradstreet Co., Inc.— and the contractor — G-eorge A. Fuller Company — were not required to comply with section 241 of the Labor Law and rule 23-7.5.11 of the Industrial Code. We disagree with that holding.
It is necessary for a better understanding of the problem presented to trace the origin and development of section 241 of the Labor Law and the stated rule of the Industrial Code. For many years prior to 1921, section 20 of the Labor Law (L. 1897, ch. 415, as amd. by L. 1909, ch. 36, as amd.) imposed upon “ All contractors and owners, when constructing buildings in cities ” the duty to take certain specified safety precautions in the course of construction. The sole object of the section was to protect the workmen employed upon the building from bodily injury (Clinton v. Boehm, 139 App. Div. 73).
When the Labor Law of 1909 was repealed and the so-called new Labor Law was enacted by chapter 50 of the Laws of 1921, the six operative sentences of former section 20 were transferred to a new section 241 and subdivided into six separate subdivisions. It is to be remembered that all of these subdivisions' mandating the owner and contractor to do certain things for the safety of the workman related solely to construction as distinguished from demolition. The section so states and a reading of the mandated duties clearly shows that they relate only to constructing a building.
By chapter 603 of the Laws of 1930, the section was broadened to cover not only construction but demolition. The amendments, however, consisted of amending the catchline and the opening sentence so that the latter read “ All contractors and owners, when constructing or demolishing buildings, shall comply with the following requirements ”. (Italics supplied.) The six subdivisions, except for two amendments, immaterial here were left unchanged. There was thus presented a situation where owners and contractors were mandated to do nothing when demolishing buildings because all the stated requirements related *548to construction work and not demolition. Thus, subdivisions 1 and 2 referred to action to be taken “ as the building progresses ”. Subdivision 3 related to a requirement. where “ double floors are not to be used”. Subdivision 4 required certain things to be done where the “ steel work is being erected ”. Subdivisions 5 and 6 related to action to be taken “ in the course of construction ”.
It is apparent that the Legislature discovered that the owner and contractor had not been required to do anything in connection with demolition work because two years later section 241 was broadened to require owners and contractors to comply with the same stated requirements when “ doing any excavating in connection ” with constructing or demolishing buildings. By the same enactment (L. 1932, ch. 470) a new subdivision was added which provided that “ The industrial board may make rules to provide for the protection of workmen in connection with the excavation work for the construction of buildings and the work of demolishing buildings, and the owners and contractors for such work shall comply therewith ”.
The subdivision was clarified by chapter 144 of the Laws of 1934 so that no doubt could remain that the rule making power was not limited to excavation work for demolition. Except for placing the rule-making power in the Board of Standards and Appeals (L. 1938, ch. 657, § 6) and renumbering the subdivision as 6 (L. 1947, ch. 683, § 7) this subdivision has remained unchanged to the present. It states that “ The board of standards and appeals may make rules to provide for the protection of workmen in connection with the excavation work for the construction of buildings, the work of constructing or demolishing buildings and structures, and the guarding of dangerous machinery used in connection therewith, and the owners and contractors for such work shall comply therewith.”
It is to be noted that even after the amendment of 1932 and 1934 there were no stated requirements for owners and contractors to comply with when demolishing buildings. One must turn to the Buies of the Board of Standards and Appeals to find such requirements. Therein appears rule 23-7.5.11 providing for suitable scaffolds constructed in accordance with rule 23-8.2 “ Whenever workmen are engaged in the removal of any part of a building or structure, which part is more than 12 feet above a floor, platform or the ground ”. (N. Y. Official Compilation of Codes, Bules & Begulations, Yol. 3, p. 664.) The trial court submitted the issue of liability to the jury solely on the theory *549of negligence based on the alleged violation of section 241 and this rule.
As we understand the majority opinion it holds in effect that an owner is exempted from compliance with this rule; that the rule was not intended to implement section 241 but section 240 of the Labor Law because it relates to scaffolding — a device mentioned in that section. We are unable to agree with this conclusion.
Section 240 relates exclusively to employers and provides in part that ‘ ‘ A person employing or directing another to perform labor of any kind in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect * * * for the performance of such labor scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed or directed.” The section further provides that under certain conditions scaffolding shall have a safety rail attached and shall be so fastened as to prevent it from swaying from the building. A third subdivision provides for the minimum weight load required.
It seems to us that a study of Industrial Code Buie Ho. 23 clearly shows that the rule in question was promulgated to carry out the provisions of section 241. Thus, the requirements found under rule 23-4 (Excavation operations); rule 23-5 (Erection of buildings and structures); rule 23-6 (Bepair and renovation operations) and rule 23-7 (Demolition operations) all implement section 241. On the other hand, rule 23-8 (Equipment) relates to scaffolding and other equipment referred to in section 240.
The prevailing opinion expresses the view that the interpretation placed on rule 23-7.5.11 by the trial court would afford demolition workers an advantage over construction workers; that the latter would have the right to have scaffolds furnished them by their immediate employers and in the event of a breach of the duty would be restricted to their rights of workmen’s compensation whereas demolition workers would have the added right under the rule to a third-party action against the owner. The obvious answer is that the specific rule under consideration applies to demolition work and not construction work.
Moreover, an examination of the rules discloses numerous examples of protection furnished both construction and demolition workers. Thus, under rule 23.5 relating to erection of *550buildings and structures we find a provision in rule 23-5.4 requiring that whenever any workman is required to work on the exterior face of the wall of any building from a scaffold which is more than three stories or thirty-five feet above grade a catch platform shall be constructed. Similarly, under rule 23.7 relating to demolition work there is a like requirement for catch platforms in rule 23-7.5.12. Here are substantially identical provisions giving protection to both construction and demolition workers. It is our opinion that these were rules made pursuant to subdivision 6 of section 241 “ to provide for the protection of workmen in connection with * * * the work of constructing or demolishing buildings and structures * * * and the owners and contractors for such work shall comply therewith.”
It seems clear that a “ catch platform ” as described in rule 23-8.9 falls within the classification of “ other devices ” set forth in section 240 in addition to scaffoldings. The conclusion reached by the majority would appear to exempt owners and contractors from liability or responsibility to either construction or demolition workers for the furnishing of “ catch platforms ”. Once a device or item may be found in section 240, an injured workman may look only to his employer under the holding of the majority. An owner or contractor is relieved of any liability or responsibility.
It is to us a finely drawn distinction that hereafter an owner under the provisions of section 241 will be required to follow the course of construction or demolition from day to day and see that floors are covered and shaft openings are guarded and other rules of the Industrial Code are complied with but may turn his back and shut his eyes when employees undertake work without the required scaffolding or catch platforms or other devices encompassed within section 240 because the Legislature in an effort to further protect the workman has also placed upon the employer the duty to furnish these devices.
It is our opinion that rule 23-7.5.11 was promulgated to carry out the provisions of section 241 and was a requirement that all owners and contractors were mandated to comply with and upon the facts here presented the case was properly submitted to the jury and the verdict against the owner and contractor should stand. The section concededly was enacted to protect the workman. The safety provisions of the section should not be whittled away except upon a plain and clear showing that such was the legislative intent. On the contrary, the intent of the Legislature was to give the laborer in the hazardous work *551of construction, demolition and excavation added protection in the form of duties cast upon the owner and contractor with ensuing liability for failure to meet those requirements. The result reached by the majority carves a large slice out of the area of protection given to such workmen.
In our opinion, however, the verdict of $100,000 was excessive. The judgment appealed from should be modified by reversing that part thereof in favor of plaintiff against defendants, with costs to abide the event, and ordering a new trial, on the ground that the verdict is excessive, unless plaintiff stipulates to reduce the verdict to $60,000 in which event the judgment, as so modified, should be affirmed.
Dore and Botein, JJ., concur with Callahan, J.; Bastow, J., dissents and votes to reverse and order a new trial unless the plaintiff stipulates to reduce the verdict to $60,000, in which event the judgments, as so modified, should be affirmed, in opinion, in which Breitel, J., concurs.
Judgments reversed and the complaint dismissed, and judgment is directed to be entered herein in favor of the defendants-appellants dismissing the complaint, with costs. Settle order on notice.
Republished decision, July 22, 1954.
Judgment modified by reversing that part thereof which grants judgment in favor of plaintiff against defendants, with costs, and the complaint dismissed, with costs and, as so modified, affirmed. Present — Dore, J. P., Callahan, Breitel, Bastow and Botein, JJ. Opinion by Callahan, J. Breitel and Bastow, JJ., dissent and vote to reverse and order a new trial unless plaintiff stipulates to reduce the verdict to $60,000 in which event the judgment, as so modified, is affirmed; dissenting opinion by Bastow, J. Order filed.*
Also printed, 284 App. Div. 804.— [Rep.