At one point plaintiff claimed he fell through the open shaft and at another time he testified he fell through the partially covered shaft. At the end of the trial, the third-party complaint was dismissed and plaintiff’s motion for a directed verdict, on the ground that there had been a violation of section
241-a of the Labor Law, was granted. The test that should have been applied on plaintiff’s motion for a directed verdict is whether, by any rational process, the jury could find for defendants
(Holmberg v.
Donohue, 24 A D 2d 569 ;
Wessel v.
Krop, 30 A D 2d 764 ). In our opinion the evidence presented did not, as a matter of law, exclude a defendants’ verdict by any rational process. The only testimony besides that of plaintiff concerning the fall in the shaft came from 'his father, who claimed to have found his son at the bottom of the shaft. Since both are interested witnesses and the testimony of plaintiff was impossible of contradiction, the jury should have been permitted to pass on their credibility
(Christie v.
B. F. Vineburg, Inc., 259 App. Div. 342 ;
Eluzar v.
B. & G. Trailer Rental, N. Y. L. J., Dec. 3, 1971, p. 2, col. 7). The third-party complaint was properly dismissed since plaintiff’s sole reliance for recovery is predicated on section
241-a of the Labor Law. In the event plaintiff succeeds on the new trial, defendants will be active tort-feasors with no right of recovery over
(Conte v. Large Scale Development Corp., 10 N Y 2d 20 ;
North River Ins. Co. v.
Alpine Development Corp., 33 A D 2d 912 ). Latham, Acting P. J., Shapiro, Gulotta and Brennan, JJ., concur; Benjamin, J., concurs in the affirmance as to the third-party defendant, but otherwise dissents and votes to affirm also as to plaintiff, with the following memorandum: It is undisputed that at the second floor the entire shaft was decked over and that there was no covering at all at the third and fourth floors. Plaintiff’s witnesses said that only half of the opening was decked over at the fifth floor; and defendants’ witness (the general contractor’s construction superintendent) said that about three quarters of the opening was decked over at the fifth floor. Plaintiff testified he fell down the shaft, from a point between the fifth and sixth floors, and landed on the second floor; he was unsure whether he fell through the uncovered part of the shaft at the fifth floor or whether he fell through the decked-over part of the shaft at that level. Defendants’ construction superintendent (their only material witness) testified that plaintiff fell down the elevator shaft; that the fifth floor decking fell down to the second floor; and that “to * * * [his] knowledge” plaintiff was removed from the shaft at the second floor level. And, most important, defendants’ construction superintendent conceded (without contradiction by any other proof) that the plywood decking that had partially covered the opening at the fifth floor was only %ths of- an inch thick. A reading of defendants’ proof thus makes it clear and undisputed that plaintiff fell down the elevator shaft from a point between the fifth and sixth floors, as plaintiff himself testified, with the only possible confusion being whether he fell through the uncovered part of the shaft or through the inadequately decked-over part which collapsed as he fell through the decking. On this proof, plaintiff was entitled to a verdict as a matter of law. Section
241-a of the Labor Law requires that elevator shaftways be protected by planking,
at least two inches thick, one floor below where men are working “in or at” such shaftways. Here, there was a violation of that statute because only part of the shaftway was planked over at the fifth floor; and the statute was also violated because the planking was only %ths of an inch thick. These violations of the statute imposed absolute liability on defendants and contributory negligence was not a defense
(Duncan v.
Twin Leasing Corp., 283 App. Div. 1080 , mot. for lv. to app. den. 307 N. Y. 943 ). It is irrelevant whether plaintiff fell through the uncoyered part of the shaft