The jury in this personal injury case returned a verdict in favor of the defendants. The substantial assignment of error is the failure of the trial court to direct a verdict against defendant 170 East 83rd Realty Corp., the owner and general contractor for the building under construction.
Plaintiff was an employee of a subcontractor. He received his injuries when he fell from a steel beam one floor above the ground level, passed through the ground level floor, and landed in the basement. There was no flooring on the ground level floor or above it. It is plaintiff’s contention that the absence of flooring on the ground level floor is a violation of subdivision 1 of section 241 of the Labor Law, in effect at the time of the accident, and, as such, constitutes negligence as a matter of law. The section as material read: “ If the floors are to be arched between the beams thereof * * * the flooring or filling in shall be completed as the building progresses.” (L. 1932, ch. 470.) Quite obviously, if the phrase “ as the building progresses ” means that the first floor should have been filled in at the time, the plaintiff’s contention is correct (Joyce v. Rumsey Realty Corp., 17 N Y 2d 118).
It appears that fitting in the flooring of the floor above the ground level was the very work on which the plaintiff was engaged when he fell. It could not be contended — as in fact it is not—that the absence of this flooring was a violation of the statute. Since it is conceded that the building had not progressed above the floor from which plaintiff fell, the only floor on the absence of which liability could be based is the ground level floor. Testimony was introduced that filling in the flooring at this stage in the progress of the building was not a feasible operation. The court left to the jury whether under these facts the building had progressed to a point where the floor was required to be filled in. We believe that this was a proper submission. In Joyce (supra), the building had progressed above the fourth *431floor and no floors had been filled in. Defendant there did not dispute that the building had progressed well beyond the point at which the statute mandated the filling of the floors. The defense there was based on the untenable contention that the absence of the flooring did not cause the fall and, hence, was not the proximate cause of the injury.
That the phrase “ as the building progresses ” is not, under these circumstances, an absolute mandate for the filling in of the floor is supported by considerations both within and without the statute. Section 241, as it provided in its entirety at the time of the accident, is concerned with the protection of workers by the filling in of floors. The three subdivisions make different provisions for different kinds of flooring. If nonfireproof materials are to be used, the flooring is to be laid “ on each story as the building progresses ” (subd. 2). If double floors are not to be used, two stories immediately below the story where the work is to be performed shall be kept planked over (subd. 3). In the case of arched floors there was no precise statement of the exact floor as in the other two subdivisions, merely “ as the building progresses.” When the section was amended in 1962, the protection required was to be reasonable and adequate and the Board of Standards and Appeals was required to make rules. The rule made by the board on temporary flooring in steel construction buildings requires such flooring two stories below the point on which work is going on in connection with the steel construction. While it is true that the regulations of the board did not have the same status that they are accorded under the current statute, and in no event could they supersede the statute, nevertheless, this implementation of the requirement of reasonable and adequate protection helps to define the phrase in the earlier statute fixing the requirement “ as the building progresses.”
We have examined the other assignments of error and are all in accord that no discussion is called for.
The judgment should be affirmed, with costs and disbursements to respondents.