I cannot accept the construction of subdivision 4 of section 241 of the Labor Law adopted by the majority of the court. I agree with the construction of that subdivision set forth in Justice Goldman’s concurring opinion, but I do not believe, as he does, that there were prejudicial errors in the court’s charge with respect to the Buies of the Board of Standards and Appeals, and I therefore vote to affirm the judgment appealed from.
So far as the construction of the statute is concerned, it seems plain to me that the construction adopted by Justice Goldman is the only reasonable one. It is the only one which carries out the legislative purpose to protect steelworkers, while engaged in the erection of upper floors, against the risk of falling through open floors below. Furthermore, it is the construction which is supported by the authorities in this State, by the administrative interpretation adopted by the Board of Standards and Appeals, and by the practice of the industry as testified to by the defendant’s own expert upon the trial.
The statute says that ‘‘ the entire tier of iron or steel beams on which the structural iron or steel work is being erected shall be thoroughly planked over ” with certain exceptions not relevant here.
As I understand the construction of the statute adopted by the majority, it is this: the tier of iron or steel beams which “ is being erected ’ ’ is required to be planked over while it is in the process of erection, presumably in a piecemeal fashion as parts of the tier are completed, and when the whole tier is completed the planks may be removed. Planking in this manner serves no useful purpose in safeguarding the steelworkers on the job, since the need for protection arises when the men proceed to erect the vertical columns above the completed floor and to place in position and to connect up the beams which are to constitute the floor above. That is the time when the danger chiefly arises of a steelworker’s falling through the completed floor, if it is unplanked, and according to the majority opinion, the planking may be removed just when that critical stage is reached. The answer may be made that the majority opinion deals only with the time when the planks are to be laid and does not authorize their removal when the floor is completed, but if the statute is construed in this way, it does not support the result reached by the majority. If the statute is construed as requiring the retention of the planks so long as steel erection work is being done above the completed, planked floor, the defendant was plainly guilty of *394a violation of the statute, since the second floor of the building had been completed and there were no planks on it at the time when the third-floor work was being done by the plaintiff. As a matter of fact, under this construction of the statute, the statute would be more burdensome than it would be under the construction which Justice Goldman and I adopt. Under our construction, there is no requirement of piecemeal planking of the floor which is in the process of erection while the work is being done; the requirement is that the completed floor be planked over after the work of building that floor is completed but before any additional steel erection work is commenced on or above it.
The majority opinion needlessly creates difficulties in the construction of the statute by insisting that the statute requires that the planking be laid in piecemeal fashion on the floor which is in the process of being erected. There is no difficulty whatever if the statute is construed as requiring the planking of a tier, after it has been completed, before further steel erecting work is commenced “on” that tier, that is, before vertical columns are erected on it and before beams are laid between the vertical columns and crossbeams are laid between the beams. This is the construction of the statute which has been adopted in the cases. (Drummond v. Norton Co., 156 App. Div. 126, 132, affd. 213 N. Y. 670; Zuco v. Funt, 292 N. Y. 201, approving the reasoning of the dissenting opinion in the court below, 266 App. Div. 802; Ithaca Trust Co. v. Driscoll Bros. & Co., 220 N. Y. 617; Olsammer v. Walker & Sons, 4 A D 2d 424, 430, affd. 4 N Y 2d 793.) Under this construction of the statute, the defendant violated the statute by failing to have the first or second floor planked before the men were set at work placing in position the beams which would constitute the third floor. (See, also, Penal Law, § 1277.)
The construction of the statute by the majority disregards the words “on which” in the statutory provision that the “ entire tier” of steel beams “ on which ” the steel work is being erected shall be thoroughly planked over. The statute does not say that the steel work which “ is being erected ” shall be planked over. It says that the tier of beams “ on which ” the steelwork is being erected shall be planked over. The words “ on which ” in this context mean “ on top of which ” or “ above which ” or “ upon or from which ” additional steelwork is being erected. It should also be noted that the statute requires that ‘ ‘ the entire tier ” be thoroughly planked over. This necessarily *395refers to a completed tier—not to the piecemeal planking of parts of the tier as it is being erected, with the right to remove the planks as soon as the “ entire tier ” is completed.
The Buies of the Board of Standards and Appeals dealing with steel construction work make the meaning of the statute perfectly plain.
The rules are a self-contained statement of all the obligations of contractors and owners in connection with the erection, repair and demolition of buildings (Industrial Code, rule No. 23, as adopted July 25,1951; N. Y. Off. Comp, of Codes, Bules & Begulations [7th Supp.], pp. 389, 396). The rules in Bulletin No. 23 include two different kinds of rules: some of the rules are merely a restatement of the statutory provisions and others impose new and additional obligations. The rule with which we are here concerned is of the first type; it merely restates the statutory provision, in a clarified and somewhat elaborated form. Buie 23-7.2 provides that “ [t]he entire erection floor shall be solidly planked over and there shall be a floor not more than two stories below the tier of beams on which bolting, riveting, welding or painting of structural steel is being done ’ ’ and that “ [w]here erection is being done by means of a crane operating on the ground, a planked floor area shall be maintained not more than two stories below, and directly under that portion of any tier of beams on which bolting, riveting, welding or painting of structural steel is being done.” It will be noted that in the rule the board resolved the ambiguity in the language of the statute which has given rise to the present controversy. It clearly described (1) the work which is being erected as the “ tier of beams on which bolting, riveting, welding or painting of structural steel is being done ” and it described (2) the floor area which should be planked over as a floor “ below ” and “ directly under ” that tier.
In the rules, the hoard took cognizance of the fact that very often two stories of steelwork are erected on or from a single base floor; the board apparently saw no objection to this, and it construed the statute as permitting it. It therefore provided that the ‘ ‘ planked floor area shall be maintained not more than two stories below ” the steelwork which is in the process of erection. The statute was thus construed by the hoard as allowing two stories of steel to be erected “ on ” the tier which was required to be planked.
The industrial practice has followed this part of the construction of the statute. As the superintendent of the third-party *396defendant testified, when called as an expert witness by tl^e defendant:
“ You bolt the second floor, bolt — you put the plank on the second floor. You bolt the third floor and the fourth, if the building is that high, and then you move the plank up to the fourth floor.
‘ ‘ Q. What happened to that third floor ? You don’t plank that third floor? A. No, never. Just every two floors.
“ Q. You only plank every other floor? A. That is right.”
It is recognized in the majority opinion that the rule required the planking of the second floor or, if that floor were left unplanlced, the planking of the first floor, while the third floor was being erected. But, having emasculated the statute, the majority opinion comes to the conclusion that the obligation is a new one created by the rule and not one created by the statute. I cannot accept this view. The language of the statute is plainly susceptible of the construction given it by the board and that construction should be adopted by the court. Instead of first construing the statute to the point of virtual extinction, without the benefit of the light thrown upon it by the rule, and then treating the rule as the creation of a new obligation, the majority of the court should have accepted the rule as a binding administrative construction of the language of the statute. It is horn-book law that the construction of ambiguous terms of a statute by the administrative agency which is entrusted with the administration of the statute “ is to be accepted by the courts ‘ if it has * * * a reasonable basis in law ’ ” (Red Hook Cold Stor. Co. v. Department of Labor, 295 N. Y. 1, 9).
It should be noted however, that the trial court submitted the issue of liability to the jury solely in terms of the statute and made no reference to the rule in that connection.
The reference to the rule crept into one part of the court’s charge in a curious fashion, the understanding of which requires us to go back to the grounds advanced by the defendant for the dismissal of the complaint upon the trial. The defendant’s counsel started with the premise that the statute was ambiguous and he noted that the rule clarified the statute by requiring planking of a floor below the place where “bolting, riveting, welding or painting of structural steel ” was being done. But he presented as an expert witness the superintendent of the third-party defendant, and he advanced through him a building trade definition of the word “ bolting ” as meaning only the permanent bolting of the steel beams after the initial erection work had been completed and the vertical columns had been *397checked to make sure that they were perfectly straight. It is undisputed that the erection of the section of the building involved in this case had not yet reached that stage. The plaintiff and his fellow worker were engaged in putting the beams in place and fastening them by temporary bolts, at the time when the accident took place. The defendant’s expert witness, and the defendant’s counsel, did not, upon the trial, advance any contention that the duty of planking related to the tier which was in the process of erection or bolting; they recognized that it was the floor below (or two floors below) which the contractor was required to plank, but they advanced the theory, based upon the alleged trade definition of the word “bolting”, that the time for planking had not yet arrived in this case. The defendant’s theory would leave the steelworkers without protection throughout the process of the initial erection of the steel structure and would protect only the workers who were engaged in the permanent bolting operation after the initial erection of all the steelwork had been completed. This strained interpretation of the obligation, of course, finds no support in the statute or in the rule; the defendant’s effort to limit the obligation in this way rested solely upon its claim of an alleged trade definition never approved by the Legislature or by the Board of Standards and Appeals. The defendant has abandoned that argument upon this appeal; there is no mention of it in the briefs before us.
However, the argument outlined above, made at the trial level and now abandoned, explains why it was that upon the trial, it was the defendant which insisted on bringing the rule into the case. The defendant sought, by means of the rule, construed in accordance with its trade definition, to limit the scope of the statute or, as the court put it, to “ dilute ” the statute and to exclude from the scope of its protection the steelworkers who were engaged in the process of erecting the steel beams and temporarily fastening them in place. Despite the fact that the Judge had rejected the argument of defendant’s counsel on the motion to dismiss, the defendant’s counsel reiterated it in his summation to the jury. To avoid the possibility of the jury’s being misled by the argument, the court apparently felt compelled to deal with it in its charge. It therefore read the rule to the jury and explained to the jury that if the jury found that the rule was in conflict with the statute it was to pay no attention to the rule; that the rule could not “ dilute ” the obligation of the defendant under the statute. The court’s charge on the subject of the rule dealt primarily with the rejection of the defendant’s contention. The court properly pointed out that, *398in view of the mandatory terms of the statute, the rule could be considered only to the extent that it clarified and “ effectuated ” the statute.
When the Judge’s charge is read against this background, it is evident that there was no error of any kind in the court’s reference to the rule. The defendant certainly may not now be heard to complain of the fact that the court referred to the rule in its charge. It will be noted that the plaintiff’s counsel took vigorous exception to the court’s mention of the rule, reiterating his position that he stood solely upon the statute. The trial court accepted this position of the plaintiff and never deviated in its charge from the proposition that the only question before the jury for its determination was whether there had been a violation of the statute and that the jury was to bring in a verdict of no cause of action if it found that the statute had not been violated. There is no suggestion in the court’s charge that there was a possible interpretation of the rule which would add to the statutory obligation of the defendant and, of course, there is no suggestion in the charge that the jury could find the defendant liable for violation of the rule even though it found that there was no violation of the statute.
The court repeatedly told the jury that the “ critical question ” was whether subdivision 4 of section 241 of the Labor Law had been violated and it repeatedly referred to the “ statutory requirements” and the “ statutory obligations ”. Upon the conclusion of its main charge, in response to an exception, the court again told the jury: “ The statute will control the situation.”
From the foregoing, it will readily be seen that there was no error in the trial court’s charge that contributory negligence could not defeat a recovery by the plaintiff in this case. Since the jury was allowed to find a verdict for the plaintiff only on the ground of a violation of the statute, no question ever arose as to the law with respect to contributory negligence in an action based upon a violation of a rule in the absence of a violation of a statute.
The opinions of the Court of Appeals and of this court in recent years have made it very clear that the plaintiff’s contributory negligence may bar a recovery in any case in which recovery is sought for a violation of a rule, as distinguished from a violation of a statute. This distinction was drawn, however, in cases which involved rules adopted by the board under the authority of the general rule-making power given to the board by sections 27-a, 28 and 29 of the Labor Law, or by subdivision 6 of section 241. The board has the power, under those statutes, *399to adopt rules which do more than clarify or effectuate a statutory command; the board inay by rule, within the limits of its statutory authority, impose new or additional obligations. Rules of this character have been adopted under the authority of subdivision 6 of section 241. That subdivision “ contains no substantive requirements or prohibitions ”, In that respect it is to be sharply differentiated from the first five subdivisions (including subdivision 4 which is involved in this case) which “ contain substantive provisions”. (Utica Mut. Ins. Co. v. Mancini & Sons, 9 A D 2d 116, 118, 117.) Subdivision 6 consists solely of a delegation of rule-making power to the board. The rules involved in Utica Mut. Ins. Co. v. Mancini & Sons (supra) and in Vallina v. Wright & Kremers (7 A D 2d 101) cited in the majority opinion, were rules adopted by the board under subdivision 6, creating new obligations and having no statutory counterpart. This is also true of the rules involved in Conte v. Large Scale Development Co. (10 A D 2d 255, mod. on other grounds 10 N Y 2d 20). The rules considered in Major v. Waverly (7 N Y 2d 332) were of a similar character. They were promulgated by the State Building Code Commission under the authority of the Executive Law, and adopted by the Village of Mamaroneck. The statute itself did not contain any substantive provisions. The substantive obligations were imposed for the first time by the code. In that situation, the court held that the plaintiff’s case rested upon a violation of the code and not a violation of the statute, and hence that the violation was only evidence of negligence and contributory negligence on the plaintiff’s part would bar a recovery.
The situation is entirely different, however, where the statute imposes a substantive obligation and the rule merely restates the obligation and, where necessary, removes ambiguities in the statute and clarifies it. Rule 23-7.2 here involved is of that type. In such a case, the rule may be considered by the court and the jury as an aid in construing the substantive provisions of the statute. The action is, however, still an action for the violation of the statute and, if the statute is of the type which imposes an absolute duty for the benefit of a particular class, an action for a violation of the statute by a member of the class so protected is maintainable without regard to negligence and it cannot be defeated on the ground of contributory negligence. (Schmidt v. Merchants Desp. Transp. Co., 270 N. Y. 287, 306.)
As has already been pointed out, the court’s charge in this case made it clear to the jury that the plaintiff’s case rested solely upon the charge of a violation of the statute and not upon the charge of the violation of any rule.
*400Therefore, I conclude that there was no error in the charge of the court submitting the case to the jury. The evidence amply sustained the jury’s verdict and I therefore vote to affirm the judgment entered thereon.
Bastow and McClusky, JJ., concur with Williams, P. J.,; Goldman, J., concurs in result, in opinion; Halpern, J., dissents and votes to affirm in opinion.
Judgment reversed on the law and facts, without costs of this appeal to any party, and a new trial granted.