Plaintiff, a peddler, had been visiting the factory building maintained by defendant daily for months with the knowledge of defendant’s agents, for the purpose of selling food to employees of tenants. Under such circumstances, he would appear to be a licensee. He established prima facie that the elevator shaft into which he fell was maintained in violation of the provisions of section 255 of the Labor Law. Plaintiff, being lawfully in the building, was entitled to the benefit of the protection afforded by the statute. (Racine v. Morris, 201 N. Y. 240; McRickard v. Flint, 114 id. 222.) In the case of Stacy v. Shapiro (212 App. Div. 723), relied on by respondent, no violation of a statutory duty was involved.
Judgment reversed and a new trial ordered, with thirty dollars costs to appellant to abide the event.
All concur. Present — Levy, Hammer and Callahan, JJ.