(dissenting in part).
I agree with the holdings of the majority of the court as to error inherent in the verdict for the defendant TWA on the First Cause of Action. I think, however, that there was no evidence to support the plaintiff’s verdict on the Second Cause of Action.
This second count was based solely on an alleged breach of statutory duty imposed by N. Y. Labor Law, § 202 which is implemented by Industrial Code Rule 21. Since concededly it was not feasible to install anchors on the hangar doors, under § 202 it was TWA’s duty to “provide other safe means for the cleaning of the windows * * * as may be required and approved by the board of standards and appeals.”
In addition to anchors and safety-belts, the “other safe means * * * required and approved” were (1) Ladders equipped with “suitable means to prevent slipping,” with a helper to hold in place “ladders more than 18 feet in length on *537a public street, and elsewhere more than 24 feet in length” (Rule 21-6.1 and 6.2); (2) Scaffolds (Rule 21-7) ; and (3) Boatswains chairs (Rule 21-8). Plainly the statute, § 202, does not require that where, as here, anchors are concededly impracticable, the owner must for each window provide all three “safe means”: the provision of one of the three approved means complies with the statute. Teller v. Prospect Heights Hospital, 280 N.Y. 456, 21 N.E.2d 504.
The ladder involved in this case was not over 18 feet and was not being used on a public street. Thus no helper to hold it in place was required by Rule 21-6.2. Even if — as there was some evidence to show — the ladder was not •equipped with rubber “boots” to prevent slipping, that fact could not possibly have been the proximate cause of the accident. The plaintiff’s own testimony required a finding to the contrary. On the trial he testified as follows: Q. “Did the ladder slip from the bottom? Did the feet slip ?” A. “It slipped to the right side. I was blown off.” Q. “My question was, sir, did the feet of the ladder slip?” A. “No.” It follows that there was no basis for a plaintiff’s verdict on the second •count.
My brothers quote Pollard v. Trivia Building Corp., 219 N.Y. 19, 50 N.E.2d '287, 290, for its statement that “the fact that the Industrial Code specifies a particular device [does not] exclude other devices that might in a particular case be reasonably deemed better adapted for the protection of the window cleaner.” I confess that I do not understand just what was meant by the statement or why it was included in an opinion in a case in which concededly no safety device whatever had been provided. But it is abundantly clear, especially in the light of Teller v. Prospect Hospital, supra, cited thereto, that the passage does not mean that an owner who provides a safe means approved by the Code may nonetheless be held to have violated the Statute.
Nor can I understand the relevance of the final paragraph of § 202 of the Labor Law which my brothers say “should be liberally construed to protect the workers.” To me it seems wholly obvious that by that paragraph it was meant only that an owner should not be absolved from providing a safe means sanctioned by the Code merely because another means, which he may have provided and which may have been adequate to satisfy the objective of the Statute, was not included as an approved means in the Code. My brothers seem to think their holding permissible under a liberal construction of the statute. I think they can reach their result only by arrogating to themselves, or according to the jury, power to add some Rule to the Code. And even so, they give no definition whatever to the synthetic Rule which they seem to envisage. Certainly the cases which they cite do not justify statutory construction of such vague and sweeping amplitude.
I would reverse the judgment for the plaintiff on the second count and the judgments on the third- and fourth-party complaints (which are dependent on the plaintiff’s second count) and remand with a direction to dismiss. On the first count, I would reverse for the errors noted in the majority opinion and remand for new trial.