I agree with the majority that it cannot be said as a matter of law the plaintiff was guilty of contributory negligence. However, I would affirm the judgment on the ground that no actionable negligence has been shown as to any of the defendants in the main action.
The breach of duty and failure to use due care which occasioned the accident were acts and omissions of Slattery Contracting Co., plaintiff’s employer. Accordingly,- it is solely responsible for the injury of which plaintiff complains.
Babin, J. P„, Valente and Eager, JJ., concur with Bergan, J.; Stevens, J., dissents in part in opinion.
Judgment modified, on the law and on the facts, by reversing so much thereof as dismisses the complaint against defendant Fuller Oil & Coal Corp. and as dismisses the third-party complaint of Fuller Oil & Coal Corp. defendant against Slattery Contracting Co.; and as thus modified affirmed, with costs to the plaintiff against Fuller and to Fuller against Slattery Co. to abide the event; with costs to defendants Consolidated Edison Company of New York and Mendlowitz against plaintiff; and with costs to Slattery Contracting Co. and Mendlowitz against Consolidated Edison Company of New York. Settle order on notice.
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