This case having been heard upon the record, briefs and arguments of counsel for the respective parties;

And the Court being of the opinion that the appellee was a person entitled to the *560 protection provided by the provisions of the New York Labor Law, Article 11, Section 256, paragraph 1, of Chapter 31 of McKinney’s Consolidated Laws of the State of New York; See Poole v. American Linseed Co., 119 App.Div. 136, 103 N.Y.S. 1047; Duffy v. State, 197 Misc. 569, 94 N.Y.S.2d 757, 761; Racine v. Morris, 201 N.Y. 240, 245-246, 94 N.E. 864;

And that the trial judge was not in error in ruling that the machine involved in the accident was not in the course of construction within the ruling of Foster v. International Paper Company, 71 App.Div. 47, 75 N.Y.S. 610, but was, in its then operative condition, a type of machine requiring a guard; See Continental Public Works Co. v. Stein, 2 Cir., 232 F. 559;

And no prejudicial error appearing in the Court’s charge to the jury;

It is ordered that the judgment of the District Court be and is affirmed.