Opinion
Argued January 6, 1944
Decided March 2, 1944
Appeal from the Supreme Court, Appellate Division, Second Department, NORTON, J.
Paul O'Dwyer for appellants.
Sidney J. Loeb, Charles H. Lane and Leo F. Potts for Isidore Funt, respondent. William L. Shumate for Sunrise Iron Works, Inc., respondent.
Martin A. Crean for Sunset Gardens, Inc., respondent.
The evidence presented an issue of fact as to whether, in the construction of the building in which the plaintiff Rosario Zuco was injured, the proximate cause of his injuries was the defendants' failure to perform a statutory duty (Labor Law, § 241, subd. 4) which required them thoroughly to plank over steel beams on which structural steel work was being erected above the place where the plaintiff was working. (See Lyles v. Terry Tench Co., 227 N.Y. 361, 363-365.) Upon this record we cannot say, as did the Appellate Division ( 266 App. Div. 802), that the testimony of the witness Marino was incredible as a matter of law.
The judgments should be reversed and a new trial granted, with costs to abide the event.
LEHMAN, Ch. J., LOUGHRAN, RIPPEY, LEWIS, CONWAY, DESMOND and THACHER, JJ. concur.
Judgments reversed, etc.