Opinion
Argued May 13, 1947
Decided July 2, 1947
Appeal from the Supreme Court, Appellate Division, Second Department, RUBENSTEIN, J.
Harold Flatto and William Flatto for appellant.
Frederick Mellor, John C. Martin and William Butler for respondents.
As to the defendant Long Island Railroad Company, judgment affirmed, with costs. Concur: LEWIS, THACHER, DYE and FULD, JJ. Dissent: LOUGHRAN, Ch. J., CONWAY and DESMOND, JJ.
As to the defendant Tully Di Napoli, Inc., judgments reversed and a new trial granted, with costs to abide the event. Concur: LOUGHRAN, Ch. J., LEWIS, CONWAY, DESMOND, THACHER and FULD, JJ. DYE, J., dissents and votes to affirm on the ground there is no common-law liability of this defendant under the authority of Moore v. Wills, Inc. ( 250 N.Y. 426) and Iacono v. Frank Frank Contracting Co. ( 259 N.Y. 377).
A majority of the court is of opinion that subdivision 7 of section 241 of the Labor Law has no application to either defendant in the circumstances of this case. A majority of the court is of opinion that there was evidence of common-law negligence proper to be submitted to the jury as against the defendant Tully Di Napoli, Inc.