—Memorandum. In this negligence action to recover damages for personal injuries, defendant Winston Muss New Rochelle Corp. appeals from so much of an amended judgment of the Supreme Court, Westchester County, entered October 15, 1970, as is in favor of plaintiff against it upon a jury verdict of $138,819. Judgment reversed insofar as appealed from, on the law; and reversed in the interests of justice insofar as it grants recovery over to appellant against third-party defendant Roland Rigging & Erecting Engineers, Inc.; and new trial granted as between plaintiff and appellant and as between appellant and third-party defendant Roland Rigging & Erecting Engineers, Inc., with costs to abide the event. We have considered the questions of fact and have determined that we would not grant a new trial on those questions. In our opinion, the trial court erred in charging the jury that contributory negligence of plaintiff could not be a defense to plaintiff’s action based on section 241 of the Labor Law as it read on July 12, 1967, the date of the accident (Corbett v. Brown, 32 A D 2d 27; Long v. Gartner, 32 A D 2d 25; 21 Syracuse L. Rev. 697). 'Since appellant was granted a recovery over against third-party defendant Roland Rigging & Erecting Engineers, Inc., and the latter failed to take a protective appeal, the interests of justice require that the new trial should also cover that claim.