I. DEFINITIONS

A. FACTORY

1. WHAT CONSTITUTES

SHEIER V. MITCHELL, 188 App. Div. 182 (May 29, 1919), abstract. A building was occupied on the first floor exclusively by retail shops, and on the second, third, fourth and fifth floors by offices, mercantile establishments and factories. Of the 390 persons working above the first floor, 96 were engaged in factory work, as appeared by the first inspection. Just preceding the institution of criminal prosecutions an inspection showed that 325 people were employed above the first floor. It was held that such building was a factory building, within the meaning of the Labor Law.

2. BUTCHER SHOP WITH CHOPPING MACHINE

A judgment for $4,000 was secured in the Supreme Court, Westchester County, by a boy who suffered injury to his right hand, while operating an electrically driven meat chopping machine in a butcher shop. The judgment was based on the ground that the machine was unguarded as required by Section 81. The Appellate Division, Second Department, reversed the judgment * on the ground that the butcher shop was not a factory within the meaning of Section 2, and therefore Section 81 was not applicable, since that section requires the guarding of machines in factories only. At a second jury trial, plaintiff again secured a verdict, and a judgment thereon was affirmed, without opinion, two Justices dissenting (O'Connor v. Webber, 170 App. Div. 916). The Court of Appeals reversed this decision, holding that there was no negligence under the Labor Law since the butcher shop was not a factory, nor was there negligence at common law. The court also decided adversely to the claim made by the injured boy's father for loss sustained by reason of injuries to his infant son (O'Connor v. Webber, 219 N. Y. 670). The full text of the opinion by the Court of Appeals in the action brought by the injured boy follows:

O'CONNOR v. WEBBER, 219 N. Y. 439 (Dec. 28, 1916).

CARDOZO, J. This is an action for personal injuries. The plaintiff was employed in the defendants' butcher shop. When customers asked for chopped

* O'Connor v. Webber, 163 App. Div. 175; see Bulletin 70, page 89.

meat, it was one of his duties to chop it. The meat chopping machine is run by electricity. At the top there is a hopper or funnel, four inches high, its diameter about four or five inches at the top and two and a half or three inches at the bottom. Beneath it is a revolving worm or screw, covered on all sides and open only at the top at its junction with the hopper. The meat is fed into the hopper and pushed down with a stick. The stick, touching the screw, flew out of the plaintiff's hand; and with the shock, his hand slipped into the machine, and the revolving screw cut off the fingers.

The charge of negligence is two-fold. It is said that there ought to have been a guard which would have made it impossible for the hand to reach the screw. It is said also that the stick, which was about six or eight inches long, ought to have been broader at the bottom, and that then the hand would not have slipped. We think that neither of the grounds assigned is adequate to support the verdict.

This case does not involve a violation of section 81 of the Labor Law (Cons. Laws, ch. 31), which requires "the owner or person in charge of a factory to provide proper guards for machinery. A butcher shop is not a factory (Labor Law, § 2; Shannahan v. Empire Eng. Corp., 204 N. Y. 543). The trial judge so ruled; and his ruling is not questioned. The statute not applying, the defendants' duty is measured by the rule at common law. So measured, we think it is impossible to say that the duty has been violated. The machine was of standard make and in common use. At the time of the accident no other or better machine had been designed. A witness for the plaintiff attempted to show that it would be possible to contrive a shield, but the contrivance, if possible, had never been published or adopted. There is no evidence that any similar accident had occurred before. There is no reason to believe that one would be likely to occur. The screw was not within reach of ready contact. It could be touched, but only by thrusting one's hand into it. Against casual contact by the thoughtless it was protected by the funnel. In such circumstances the defendants did their full duty when they furnished the only machine that was available in the market. They were not required to employ experts to design a new machine. They were not running a factory, where machinery is the principal thing, the very life of the business. Those engaged in such callings are held under the statute to a duty more nearly absolute. The principal thing with the defendants was the retail sale of meat, and the chopper was a minor incident. If they were charged with a duty to become inventors of improved devices, and that too in an attempt to guard against remote and doubtful dangers, the same duty must attach to every one who uses a standard machine of any kind in his office or his home. The law does not impose a duty so onerous (Carlson v. Phoenix Bridge Co., 132 N. Y. 273; Harley v. Buffalo C. M. Co., 142 N. Y. 31; Devlin v. Smith, 89 N. Y. 470, 476; Bauman v. Cowdin, 75 N. J. L. 193; Reynolds v. Merchants Woolen Co., 168 Mass. 501).

What has been said also answers the suggestion that the plaintiff should have been furnished with a stick of some other shape. To charge the defendants with negligence on that ground is to go beyond the rule which holds them to reasonable care (Harley v. Buffalo C. M. Co., supra).

The judgment should be reversed, and a new trial granted, with costs to abide the event.

WILLARD BARTLETT, Ch. J., HISCOCK, COLLIN, CUDDEBACK and POUND, JJ., concur; HOGAN, J., not voting.

3. ENGINE HOUSE

In an action brought under Section 81, it was held that a cableway engine, housed in a detached building, was not a "factory with the meaning of section 2 of the Labor Law. Comiskey v. Winston, 179 App. Div. 251 (July 31, 1917). The text of the decision is reproduced at page 76.

4. ASPHALT MIXING MACHINE AS "FACTORY"

CONTINENTAL PUBLIC WORKS v. STEIN, 232 Fed. 559, 146 C. C. A. 517 (April 18, 1916), abstract.

The United States Circuit Court of Appeals has held, in a case arising under the New York Employers' Liability Act, that an asphalt mixing machine used to prepare materials for street paving is a "factory," and that the determination of the nature of such machine was a question for the court. The court, in reaching this determination, said:

"We have no doubt that the business in which the defendant engaged in running asphalt and stone through its 'mixer' and covering the stone with asphalt as it passed through the machine, thus producing a product to be used in constructing a street, was that of manufacturing.' And if a factory is a plant where something is made or manufactured from raw or partly wrought materials into forms suitable for use,' then this plant where the accident occurred was a 'factory' under the act.

"The trial court submitted to the jury the question of whether the defendant's plant is a factory. In this the court was in error. Whether or not it is a factory is a question of law."

5. THEATER COMPANY MAKING AND REPAIRING GARMENTS AS OPERATING

URSPRING V. WINTER GARDEN Co., 183 App. Div. 718 (March 5, 1918), abstract.

It has been held that the making and repairing of theatrical costumes in connection with a theater company constitute a factory within the meaning of section 2.

B. EMPLOYEE

For a definition of the meaning of the term "employee", as used in section 2, the case of People v. Interborough Transit Co., 169 App. Div. 32, reproduced at page 25, is of interest.

II. PREFERENCE OF CITIZENS IN EMPLOYMENT

ON PUBLIC WORKS

In Bulletin No. 70, the cases of Heim v. McCall, 214 N. Y. 620, and Crane v. People, 214 N. Y. 154, are discussed at length on the question whether the provision that aliens should be employed on public works, and whether citizens of the state should be preferred in such work, was constitutional. As there pointed out, the statute was subsequently amended so as to provide:

"In the construction of public works by the state or municipality, or by persons contracting with the state or such municipality, preference shall be given to citizens over aliens. Aliens may be employed when citizens are not available."

Notwithstanding this change permitting the employment of aliens, the cases were appealed to the Supreme Court of the United States where each case was disposed of as follows:

(1) HEIM V. MCCALL, 239 U. S. 175, 60 L. Ed. 206, abstract.

The provision requiring that only citizens shall be employed on public works, and that preference shall be given to citizens of the state, is not unconstitutional.

(2) CRANE V. PEOPLE, 239 U. S. 195, 60 L. Ed. 218, abstract.

A statutory provision requiring citizens to be employed on public works, and that citizens of the state shall be preferred, is not repugnant to the Fourteenth Amendment, in that it makes a distinction between aliens and citizens.

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III. HOURS CONSTITUTING DAY

A. EIGHT-HOUR LAW AS AUTHORIZING

OVERTIME

PAYMENT FOR

Section 3 of the Labor Law, as amended in 1909 and subsequent years, forbids the employment of any laborer upon public work in excess of eight hours, except in cases of extraordinary emergency, and stipulates the payment of the rate of wages prevailing in the locality where the work is being done for such eight hour day. A recent decision in the Court of Appeals interpretative of two earlier statutes, since superseded by section 3, is reproduced below because of the discussion of the questions of employment in excess of eight hours upon public work and compensation therefor, and of the status of a locktender on the Erie Canal and the effect of the acceptance by a public employee of a monthly salary on his claim for additional compensation:

WRIGHT V. STATE OF NEW YORK, 223 N. Y. 45 (Feb. 26, 1918). HOGAN, J. In the years 1893-1894, the season of navigation on the Erie Canal opened May first and closed December first. During the years stated, the claimant was appointed by the Superintendent of Public Works a locktender on the Erie Canal. His compensation was fixed by the Superintendent at $42.50 per month, which amount was paid to him at the end of each month during the two seasons and he receipted for the same on the monthly payrolls. During the two seasons there were two locktenders at the lock where claimant was employed, each one working twelve hours per day, seven days per week, that the canal might be continually open for navigation. Each locktender was ordered not to leave a lock until relieved by his successor.

April 25, 1895, claimant duly filed a claim against the State for four hours' extra service performed by him daily during the two seasons, aggregating in amount $297.50. The claim was not tried until March, 1916. In September, 1916, judgment was entered in favor of claimant for the amount claimed, which upon appeal by the State was modified by the Appellate Division by reducing the recovery to the sum of $144.25, the amount due for services from and after May 10, 1894, and, as thus modified, affirmed. Both parties appeal to this court.

The statute of 1870 provided by section 1 that eight hours shall constitute a legal day's work for all classes of mechanics, workingmen and laborers excepting those engaged in farm and domestic labor. Section 2 made applicable the law to mechanics, workingmen and laborers employed by the State. The Court of Claims construed the law of 1870 as sufficient to permit claimant to recover for the season of 1893. The Appellate Division followed the decision of McCarthy v. Mayor, etc., of N. Y. (96 N. Y. 1), and held to the contrary.