§ 8-a, as added by Laws of 1913, chap. 740.) Except in certain specified employments, this is to be strictly observed where there is Sunday work. By subdivision 3 it is provided that, before operating on Sunday, the employer shall post conspicuously a schedule containing a list of the Sunday employees, and designate the day of rest for each, and shall file a copy of such schedule with the Commissioner of Labor.

The testimony of a factory inspector showed that on Sunday, August 16, 1914, no such list was posted in appellant's laundry, wherein fifteen women were then working. One of the women, then employed there, testified that her rest day had been the previous Thursday.

There was a breach of the statute, not by working beyond six consecutive days, but before operating on Sunday in failing to post this list and to file a copy thereof.

While the

Appellant questions this requirement as unconstitutional. validity of this " one day of rest in seven" law is settled (People v. Klinck Packing Co., 214 N. Y. 121), appellant urges its details of administration are overburdensome, arbitrary and unreasonable.

The employer has not only to post this list or schedule, but (by subdivision 4) he has also to keep a timebook of his employees, wherein are the names, addresses and hours worked by each, which book is to be open to the Commissioner of Labor. But the posting of a list and the timebook are not cumulative. Each Sunday worker has an advance assurance of his appointed rest day by the list of such workers being posted. But lest this provision should fail by the list having been defaced or lost, the worker is fully secured by a copy being on file with the Commissioner of Labor. Hence posting and the filed copy are together needed to protect the worker, and as a means to expose evasions of this statute. Such requirements, therefore, are no breach of constitutional guaranties. (Commonwealth v. Riley, 210 Mass. 387;

sub. nom. Riley v. Massachusetts, 232 U. S. 671.)

It was for an entire omission to post and file such a list that appellant was fined. He urges that it is a hardship to compel such lists also to be filed with the Commissioner of Labor, but the Legislature deemed this a part of the worker's protection.

Appellant was rightly convicted for failing to observe this requirement, that before operating on Sunday a list of employees required or allowed to work on Sunday shall be posted, and a copy filed, designating the day of rest for each, which was a valid regulation for factories and mercantile establishments.

The judgment of conviction should be confirmed.

JENKS, P. J., THOMAS, CARR and RICH, J. J., concurred.

C. PARTICULAR EMPLOYEES

1. IN EMERGENCY REPAIR SHOP

Two weeks after decision in the Stevens case (see IV, C, 2, post), the Appellate Division, Second Department, held that an emergency repair shop maintained at the power house of an electric railway company is a "factory." The shop was main

tained primarily for emergency purposes, the lighter parts only being made therein. As in the Stevens case, the court referred to the definition of "factory" in section 2 as determinative of its meaning in section 8-a. The material part of the opinion follows:

PEOPLE V. TRANSIT DEVELOPMENT Co., 178 App. Div. 288 (May 25, 1917), in part.

In the shop were four or five machinists and their helpers- seven or eight men in all. Among them was one Machiels, a machinist, who, to a factory inspector for the State Industrial Commission, complained that between May 14, 1916, and May 21, 1916, both dates inclusive, he was not allowed twentyfour consecutive hours of rest. An information, signed by the factory inspector, accused the Transit Development Company of having unlawfully violated and omitted "to comply with the provisions of section 8-a-3 of article II of an act of the Legislature of this State, entitled 'An act relating to labor, constituting chapter 31 of the Consolidated Laws,' being chapter 36, Laws of 1909, as amended, in that it as proprietor of the machine shop factory at 502 Kent avenue, borough of Brooklyn, city of New York, did not allow at least twenty-four consecutive hours of rest during the aforementioned period, a calendar week, to one August Machiels of 57 South 10th street, borough of Brooklyn, city of New York, who was employed in said factory during said period."

In a Court of Special Sessions held by a city magistrate the Transit Development Company was convicted of having violated the statute and was sentenced to pay a fine of twenty dollars. (See Penal Law, § 1275, as amd. by Laws of 1913, chap. 349.) From that judgment it appeals to this court.

The question at issue is whether the appellant was engaged in maintaining a factory within the meaning of the statute. "In construing this statute we should endeavor to ascertain its fair and reasonable meaning, avoiding a construction which either extends or limits provisions beyond that which was evidently intended." (Schapp v. Bloomer, 181 N. Y. 125, 128.) The statute (Labor Law, chap. 36, Laws of 1909, constituting Consol. Laws, chap. 31, as amd. by laws of 1913, chap. 740; Laws of 1914, chap. 396; Laws of 1915, chap. 648) in part reads:

"§ 8-a. One day of rest in seven. 1. Every employer of labor engaged in carrying on any factory or mercantile establishment in this State shall allow every person, except those specified in subdivision two, and as otherwise herein provided, employed in such factory or mercantile establishment at least twenty-four hours of rest in every calendar week." Machiels was not in one of the excepted classes.

After quoting section 2 of the Labor Law, as amended by chapter 650 of the Laws of 1915, defining "factory" and "work for a factory," the court continued:

The appellant argues that the fair and reasonable meaning of the words "construction or repair shops " should be limited to those repair and construction shops where general construction and repair work is carried on, and

should not be extended to include purely maintenance work in a generating plant. It further argues that the phrase "other than construction or repair shops" modifies "other structures" and does not refer back to power houses, generating plants, barns, storage houses, sheds." We are not convinced by either argument.

From the operation of the statutes, the Legislature, by definition, specifically exempted power houses and generating plants owned or operated by a public service corporation; but then, with particularity, it excludes repair shops from the benefit of the exemption. No distinction is expressed between a shop in which emergency repairs are made and a shop in which general repairs are made. The workshop in which Machiels was employed is a repair shop. Had it been housed in a building separate and apart from the power house, there would not, we think, be any question that those employed in it are entitled to twenty-four consecutive hours of rest in every calendar week. Why should the circumstance that it is operated under the same roof make a difference? We cannot reason why.

The judgment of conviction of the Court of Special Sessions should be affirmed.

2. IN MILK BOTTLING ESTABLISHMENT

Prior to the amendment of section 2 by chapter 694, Laws of 1917, by which "bottling" establishments were distinctly classified as factories, it was held that an establishment for pasteurizing and bottling milk was not a factory within the meaning of section 8-a. The abstract of the opinion following shows the construction placed upon sections 2 and 8-a in this respect.

PEOPLE V. STEVENS Co., 178 App. Div. 306 (May 11, 1917), abstract, appeal dismissed, 221 N. Y. 622 (July 11, 1917).

The defendant admitted that it operated a pasteurizing establishment, that more than seven employees were engaged in pasteurizing and bottling milk, and also that it required one of its employees to work on Sunday without posting notice of the Sunday schedule and filing the same. If the establishment operated by the defendant constituted a factory, then the act of failing to post and file the Sunday schedule constituted a crime. In the course of its opinion the court said:

"But the People claim that the meaning of the word factory," employed in section 8-a, is not controlled by the definition contained in section 2, because certain specified exemptions from the operation of the act operated by impli cation to enlarge the meaning of the word "factory" to cover the defendant's establishment. The clause relied on by the People is a portion of subdivision 2 of section 8-a, which reads as follows:

2. This section shall not apply to

(f) Employees in dairies, creameries, milk condensaries, milk powder factories, milk sugar factories, milk shipping stations, butter and cheese factories,

ice cream manufacturing plants and milk bottling plants, where not more than seven persons are employed.'

"The reasoning is that such exemption would be an idle and useless legislative act unless such establishments are factories, and that, therefore, those employing more than seven persons are subject to this act. Now, if the exemption had been enacted originally as part of section 8-a, the reasoning would have had some force. But that clause of exemption was not part of the act as originally passed. (See Laws of 1913, chap. 740.) The law, therefore, when it went into effect adopted the definition contained in section 2 as construed by the courts; and that was the unquestionable meaning of the term for the first year of the operation of the act. The clause containing the exemptions was inserted in an act a year afterwards. (Laws of 1914, chap. 388.) It cannot be held that this clause which on its face appeared to limit the field of operation of the existing law, had the effect of extending it. No canon of interpretation requires this, especially when considering the effect of a penal enactment. We hold, rather, that the exemptions were passed from excess of caution, in view of the fact that some of the exempted industries would probably involve manufacture. It is also noted that, on this branch of the case, the whole of the People's argument rests on the use of the words "milk bottling plants" appearing in the clause of exemption in which the word "pasturizing" is not used, and the labor in question was employed in the pasteurizing department.

"The judgment of conviction of the Municipal Term of the Court of Special Sessions is reversed, and the defendant discharged."

V. PAYMENT OF WAGES

A. CASH PAYMENT

Section 10 of the Labor Law requires cash payment of wages to their employees by certain corporations. In the case of People v. Interborough Rapid Transit Co., 169 App. Div. 32 (reported V, B, post), it was held that a civil engineer in the employ of a street railway company was not an "employee" within the meaning of the Labor Law, hence payment of his compensation by check was lawful.

B. WEEKLY PAYMENTS, EMPLOYEES WITHIN PROVISION OF ACT

Section 11 of the Labor Law requires that certain corporations shall "pay weekly to each employee the wages earned by him." The question frequently arises as to who is an "employee" within the meaning of the statute. Section 2 defines an employee as "a mechanic, workingman or laborer who works for another for hire." A submission of agreed facts was made by the State Industrial Commission and the Interborough Rapid Transit Company of New York City to the Appellate Division under section 1279 of the Code of Civil Procedure. The court held that the stenographer, accountant, typist, rodman, chainman, levelman, civil engineers, bookkeeper, draftsman, structural designer and clerk employed by the above street railway company were not "employees," but that the blueprint maker, the office boy, the matron, telephone switchboard operator and chauffeur were embraced within the statute. The opinion follows:

PEOPLE V. INTERBOROUGH RAPID TRANSIT Co., 169 App. Div. 32 (July 9, 1915.) HOTCHKISS, J.: In the operation of the defendant's railroad it has in its service the following persons, among others:

(A) A stenographer whose duties are to take dictation by shorthand and transcribe the same on a typewriter. Her compensation is at the rate of $960 per year, and she is paid $80 monthly.

(B) An accountant whose duties are with bills and payrolls. His compensation is at the rate of $1,500 per year, and he is paid $125 monthly.

(C) A typist, his duties being to copy papers by typewriter. His compensation is at the rate of $540 per year, and he is paid $45 monthly.