The question presented by this appeal is whether there is sufficient evidence to support the verdict of the jury in favor of the plaintiff as against the defendant, George W. Walker & Sons, Inc., the general contractor. In view of the detailed recitation of the facts in the majority opinion, there is no need to repeat them here. We believe that there is testimony in the record which may well uphold the verdict of the jury.
If the plaintiff is to succeed his recovery must be founded upon violations of sections 240 and 241 of the Labor Law. In view of the manner in which the issues were submitted to the jury the success of the plaintiff under section 241 of the Labor Law must rest upon subdivision 4 of that section. We have then the respective problems of whether there was a violation of section 240 of the Labor Law which provides, as a condition of liability, that the person to be held responsible must be “ employing or directing another ”; and subdivision 4 of section 241 which requires thorough planking of the entire tier of iron or steel beams on which the structural iron or steelwork is being erected.
It is axiomatic that in view of the verdict we must examine the facts in the light most favorable to the plaintiff. With this principle in mind, we point to specific portions of the record which would support the finding implicit in the verdict that the defendant general contractor was directing plaintiff in the prosecution of the application of the gypsum to the deck of the building. Such evidence is found in plaintiff’s testimony that “ a Walker superintendent” was overseeing the job and was on the ladder coming up through the roof at various times and at the time of the accident. Defendant admitted, in lieu of reception in evidence of a deposition of Mr. Walker that the defendant was controlling the job. Defendant Walker’s super*435intendent of construction, Joseph Lippert, gave further evidence of directing the job by his statement that although his crew had discontinued work by reason of the inclement weather, he remained on the job watching the Martin men as they applied the gypsum. All of the ladders used to gain access to the roof were placed in the position where located under the instructions of defendant Walker’s superintendent and he admitted that he went up the ladder to the roof several times on the day of the accident to oversee the work of the plaintiff and the other Martin men. Furthermore, the same superintendent inspected the job from time to time and the jury was justified, by direct proof and by inference from facts, in finding that defendant Walker’s superintendent was something more than a mere observer.
Nor are we in accord with the prevailing members of this court that there was no evidence for submission to the jury as to whether defendant was a “ person employing or directing ” the plaintiff. We believe that the result reached by the majority is in conflict with Kluttz v. Citron (2 N Y 2d 379) where, unlike the instant case, the jury verdict was sustained. Here, the jury could well have found that the defendant was directing the plaintiff.
There is further testimony that the defendant, as general contractor, directed the construction operation generally, that the floor had not been completed on the second story and where not completed no planking had been supplied. There is also proof that although defendant Walker’s superintendent knew men were working on the roof there was no planking on the tier underneath although it was possible to have covered the openings by planking. There are various facts from which the jury could have drawn the conclusion that if there was proper planking the plaintiff’s fall would have been broken and that he would not have suffered such serious injuries. As Judge Lewis said in Noble v. Marx (298 N. Y. 106, 111): “we think there was evidence ‘ enough to countenance the verdict ’ ”.
We believe the verdict must be sustained on this ground alone for clearly there is sufficient evidence from which the jury could have found that the injuries plaintiff suffered Avere caused by the general contractor’s failure to plank. Liability may Avell rest upon that ground. (Ithaca Trust Co. v. Driscoll Bros. & Co., 220 N. Y. 617.)
At the close of the court’s charge, plaintiff’s attorney made the following request: “Your Honor, I have a couple of requests. I ask Your Honor to charge the jury that if the plaintiff, Olsommer, was injured because the floors in the building were *436not planked over, they shall bring in a verdict in favor of the plaintiff.” To this request, the court replied: “ Well, I think I covered that ”. No specific objection was taken by the defendant to this charge and it follows that the failure to object made this charge the law of the case.
Again we turn to Judge Lewis in Antonsen v. Bay Ridge Sav. Bank (292 N. Y. 143, 146): “In view of those instructions — which became the law of the ease and to which we must assume the jury gave full heed (People v. Guardino, 286 N. Y. 132, 135) — there is implicit in the verdict for the plaintiff a finding ’ ’ which the court held supported the verdict. The same principle is found in Buckin v. Long Is. R. R. Co. (286 N. Y. 146, 149) where the court wrote: ‘ ‘ Thus, although erroneous, this charge became the law of this case and requires a reversal of the judgment in favor of the plaintiff.”
The judgment and order should be affirmed.
All concur, except Bastow and Goldman, JJ., who dissent-and vote for affirmance in an opinion by Goldman, J., in which Bastow, J., concurs. Present — McCurn, P. J., Kimball, Williams, Bastow and Goldman, JJ.
Judgment and order affirmed insofar as they dismiss the third-party complaint and grant costs to the third-party defendant, and otherwise judgment and order reversed on the law and complaint dismissed, without costs of this appeal to any party. We have examined the facts and find no error therein.