I dissent and vote to affirm on the ground that the evidence establishes violation of rules 23-3.9, 23-3.24, 23-39.14 of the State Industrial Code which regulations were promulgated under and appear to be referable to section 241 of the Labor Law. Consequently, under the rule expressed in Komar v. Dun & Bradstreet Co. (284 App. Div. 538, especially 542-543) liability may be imposed on the owner although the work was being done by an independent contractor. Unlike the scaffolds involved in the Komar case, the shaftway here is not one of the appliances or conditions expressly listed in section 240 of the Labor Law. Therefore, the regulations adopted by the Board of Standards and Appeals concerning shaftways may not be subsumed under that section, but must be related to section 241.
On the other hand, I quite agree that the air shaftway in this case is not an “ elevator shaftway” or a “ hatchway ” within the meaning of section 241-a of the Labor Law. If the air shaftway were covered by that section, the section would, as contended by plaintiff, impose liability on the owner in the event of violation (Bobbey v. Turner Constr. Co., 283 App. Div. 939, affd. 308.; N. Y. 890).
The case may not be disposed of on the ground that the accident arose from a hazard created by the nature of the work itself, because the regulations relate and provide alternative safeguards even as to work in progress in shafts. The alterna*237tives are provided to accommodate to the variant conditions created by the work.
Botein, P. J., Valente and Stevens, JJ., concur with McNally, J.; Bbeitel, J., dissents and votes to affirm in opinion.
Order, entered on July 18, 1960, so far as appealed from, reversed, on the law. The facts have been reviewed and the finding of excessiveness is affirmed. The complaint is dismissed, with costs to defendant-appellant. The cross complaint is dismissed, without costs. Settle order on notice.