§ 2.

Definitions.

L. 1919, ch. 402.

LABOR BOARD.

L. 1920, ch. 894.-An act making an appropriation for expenses of the board appointed by the governor for the promotion of better relations between workers and their employers and the prevention of strikes and lockouts.

LABOR LAW.

(L. 1909, ch. 36.)

L. 1919, ch. 155, appropriated $50,000 for additional employment offices, and authorized the industrial commission to accept funds and personal service from other sources than the state.

§ 2. Definitions.-The term "mercantile establishment" means any place where one or more persons are employed, where goods, wares or merchandise are offered for sale and shall include any building, shed or structure, or any part thereof, which is occupied in connection with such establishment. The provisions of this chapter affecting structural changes and alterations shall not apply to mercantile establishments where less than six persons are employed except as otherwise prescribed by the state industrial commission in its rules. (Paragraph amended by L. 1919, ch. 402.)

Relation of employer and employee; when exists.-Where a contractor hires teams and drivers from another person and places them under the exclusive control and authority of its foreman, the relation of employer and employee within the meaning of the Labor Law exists between the contractor and the drivers of the team, rendering the contractor liable for negligence resulting in injury to a driver, although he received no wages directly from the contractor. Green v. McMullen, Snare & Triest, Inc. (1917), 177 App. Div. 771, 164 N. Y. Supp. 948.

Employee.-Wolff v. Fulton Bag and Paper Mills (1918), 185 App. Div. 436, 173 N. Y. Supp. 75; People ex rel. Cockcroft v. Miller (1919), 187 App. Div. 704, 176 N. Y. Supp. 206.

Factory.-Ursprung v. Winter Garden Co. (1918), 183 App. Div. 718, 169 N. Y. Supp. 738; Cockcroft v. Mitchell (1919), 187 App. Div. 189, 167 N. Y. Supp. 6.

An establishment for pasteurizing and bottling of milk is not a "factory." There must be some manufacturing in the establishment to bring it within the definition of a "factory" as that word is used in this section. People v. Stevens Co. (1917), 178 App. Div. 306, 165 N. Y. Supp. 39; appeal dismissed 221 N. Y. 622, 117 N. E. 1079.

A building which is occupied on the ground floor by stores and on the other floors by offices, mercantile establishments and factories, in which 96 out of 390 people are engaged in factory work, is a factory within the meaning of the Labor Law. Scheier v. Mitchell (1919), 188 App. Div. 182, 176 N. Y. Supp. 597.

The drink hall maintained and conducted by the Conservation Commission on the Saratoga Reservation pursuant to the provisions of the Conservation Law is neither a factory nor a mercantile establishment within the meaning of this section. Opinion of Attorney General (1919), 21 State Dep. Rep. 510.

L. 1919, ch. 544.

One day of rest in seven.

§§ 3, 8-a.

"Labor."-Cockcroft v. Mitchell (1919), 187 App. Div. 189, 167 N. Y. Supp. 6.

§ 3. Hours to constitute a day's work.

Claim for work overtime at prevailing wages.-A locktender on the Erie canal is within the statute (L. 1870, ch. 385, § 2, as amd. by L. 1894, ch. 622), relating to the hours of labor and the compensation of mechanics, workingmen and laborers, and entitled to recover compensation for extra services performed in excess of the hours of labor specified at the prevailing rate of wages in the locality where he was employed, together with interest thereon from the date of the filing of a claim against the State therefor. The compensation of such locktender having been fixed by the statute, the Superintendent of Public Works was powerless to increase or diminish the same. The acceptance by the employee of a monthly salary and a receipt therefor on a monthly payroll did not operate as a waiver of a right to recover the additional compensation fixed by law. Wright v. State (1918), 223 N. Y. 44, 119 N. E. 83, modfg. 180 App. Div. 151, 167 N. Y. Supp. 430.

Section cited.-Belting and Machinery Co. v. City of Corning (1917), 221 N. Y. 522, 116 N. E. 1035, affg. 164 App. Div. 969, 149 N. Y. Supp. 1070; Belmar Contracting Co. v. State (1920), 110 Misc. 429, 180 N. Y. Supp. 494; Fosmire v. National Surety Co. (1919), 189 App. Div. 44, 177 N. Y. Supp. 810.

§ 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, or in operating an elevator either for freight or passengers in any building or place 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, or in caring for, having the custody or management of or operating any such elevator, at least twenty-four consecutive hours of rest in every calendar week. No employer shall operate any factory or mercantile establishment, or any such elevator, on Sunday unless he shall have complied with subdivision three. Provided, however, that this section shall not authorize any work on Sunday not now or hereafter authorized by law. (Amended by L. 1919, ch. 544.)

Construction. In construing this section the court should endeavor to ascertain its fair and reasonable meaning, avoiding a construction which either extends or limits its meaning beyond that which was evidently intended. People v. Transit Development Co. (1917), 178 App. Div. 288, 165 N. Y. Supp. 114.

The meaning of the word "factory" employed in this section is controlled by the definition contained in section 2, notwithstanding subdivision 2 (f) of section 8a added by Laws of 1914, chapter 388, providing that said section shall not apply to certain establishments including "milk bottling plants, where not more than seven persons are employed." Subdivision 2 (f), which appears on its face to limit the field of operation of the existing statute, cannot be held to have extended it. It seems, that the exemptions were passed from excess of caution in view of the fact that some of the exempted industries would probably involve manufacture. People v. Stevens Co. (1917), 178 App. Div. 306, 165 N. Y. Supp. 39, appeal dismissed 221 N. Y. 622, 117 N. E. 1079.

An emergency repair shop maintained by an electric railway company at its power house, where only lighter parts are made and only four or five machinists and their helpers, seven or eight men in all, are employed is a "factory" within the meaning of this section of the Labor Law, providing for twenty-four consecutive

hours of rest in every calendar week. People v. Transit Development Co. (1917), 178 App. Div, 288, 165 N. Y. Supp. 114.

The drink hall maintained and conducted by the Conservation Commission on the Saratoga Reservation pursuant to the provisions of the Conservation Law is neither a factory nor a mercantile establishment within the meaning of this section. Opinion of Attorney General (1919), 21 State Dep. Rep. 510,

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An establishment for the pasteurizing and bottling of milk is not a "factory" within the meaning of this section. People v. Stevens Co. (1917), 178 App. Div. 306, 165 N. Y. Supp. 39, appeal dismissed 221 N. Y. 622, 117 N. E. 1079.

TAY

$14. Preference in employment of persons upon public works.

Section cited.-Belting and Machinery Co. v. City of Corning (1917), 221 N. Y. 522, 116 N. E. 1035, affg. 164 App. Div. 969, 149 N. Y. Supp. 1070; Delmar Contracting Co. v. State (1920), 110 Misc. 429, 180 N.. Y. Supp. 494.

§ 18. Scaffolding for use of employees.

-Application. This section relates only to employees injured in the erection, repairing, altering or painting of a building and not to those who are engaged in tearing it down Burger v. Kirchof (1917), 180 App. Div. 731, 168 N. Y. Supp. 239. Action by employee of one independent contractor against another independent contractor for breaking of scaffold plank. Haakenson v. Goelet (1918), 222 N. Y. 626, 118 N. E. 1061, affg. 168 App. Div. 903, 152 N. Y. Supp. 1115.

Where the cause of action arose in the State of New Jersey, the provisions of the New York Labor Law have no force. Cassin v. Stillman, Delehanty-Ferris Co. (1918), 185 App. Div. 63, 172 N. Y. Supp. 754.

"Scaffold"; what constitutes.-Two wooden horses about three and one-half feet high with two planks laid thereon, furnished and placed in position by a foreman for the use of a plasterer, constitute a "scaffold." Storrier v. Mosier & Summers (1917), 221 N. Y. 237, 116 N. E. 981, affg. 166 App. Div. 968, 151 N. Y. Supp. 1145.

Not all scaffolding is included, but only that furnished in the "erection, repairing, altering, or painting of a house, building or structure." Jeffrey v. Miller, Inc. (1917), 222 N. Y. 135, 118 N. E. 522, revg. 170 App. Div. 913, 154 N. Y. Supp. 1127. Duty to furnish "scaffolds" not delegable; defense of negligence of fellow servants taken away. This section imposes upon an employer in the "erection, repairing, altering or painting of a house, building or structure," a non-delegable duty to furnish safe, suitable and proper scaffolds, constructed, placed and operated to give proper protection to the life and limb of those whom he employs to perform labor thereon. It takes away the defense based on the negligence of fellowservants, The scaffold becomes a place to work instead of a mere detail of the work, and it is of no consequence whether it is relatively permanent or temporary in its character. Jeffrey v. Miller, Inc. (1917), 222 N. Y. 135, 118 N. E. 522, revg. 170 App. Div. 135, 154 N. Y. Supp. 1127.

Assent of employee to violation of section by master.-As the statute makes an express prohibition against furnishing an unsafe or improper scaffold, public policy will not permit the master to violate the duty even with the assent of the employee. Christiensen v. Morse Dry Dock and Repair Co. (1917), 179 App. Div. 825, 167. N. Y. Supp. 57.

Assumption of risk by employee.-Where, in an action against a master to recover for personal injuries, the jury were justified in finding that the master, engaged in altering a ship, furnished the plaintiff, his employee, with an unsafe scaffold, it was not error for the court to refuse to charge in substance that the law which imposes upon an employer the duty of seeing that a scaffold is proper does not

L. 1919, ch. 545.

Inspection of scaffolding, etc.

$ 19.

take away the defense of the assumption of risk if the jury believe that the plaintiff knew of the condition of the scaffold and could readily have fixed it himself if he believed it necessary and that the jury may find that the employee assumed the risk. Christiensen v. Morse Dry Dock and Repair Co. (1917), 179 App. Div. 825, 167 N. Y. Supp. 57.

Proof of violation of section establishes negligence of master as matter of law.— This section has a purpose beyond declaring the common-law obligation of a master, and its specific requirements must be complied with. Proof of a violation of the statute is sufficient to establish negligence of the master as a matter of law. Where in an action to recover for the death of one who fell from a scaffold it is admitted by the master that the guardrail instead of being bolted in its socket was tied with a rope, it was error to submit to the jury the question as to whether the guardrail was properly attached in compliance with the statute. Such erroneous submission constitutes reversible error where the plaintiff claims that when her intestate fell from the scaffold he had hold of the guardrail and might not have fallen but for the fact that it was not secure. Carr v. Gottschaldt (1918), 181 App. Div. 810, 168 N. Y. Supp. 1045.

Liability of company using scaffold constructed by another company for such purpose for payment of judgment recovered against said other company on ground that said scaffold was defective.-Where a building company having a contract with the State for the construction of a building entered into an agreement with another company to erect certain wire guards and in performance of said agreement constructed a scaffold to be used by the other company in the performance of its work, which scaffold collapsed while being so used, seriously injuring an employee of the other company, who, in an action against the building company under section 18 of the Labor Law which the other company was notified to defend, recovered judgment, by which it was determined that the collapse of the scaffold was due to faults in construction rendering it unable to bear the very load for which it was agreed to be built, the building company is not entitled to recover over against the other company for whom it built the scaffold the amount paid by it on the judgment. The user of a defective scaffold who fails to make a test to discover its defects does not on that account become liable to the builder who creates the defects for the damages which the latter is obliged to pay, for the failure to detect a wrong cannot be a greater fault than the wrong itself. Keeler Building Co. v. Titchener & Co. (1919), 190 App. Div. 135, 179 N. Y. Supp. 344.

Section cited.-Swanson v. Von Hoveling American Composition Co. (1917), 221 N. Y. 568, 116 N. E. 1078, affg. 166 App. Div. 900, 151 N. Y. Supp. 1147.

§ 19. Inspection of scaffolding, ropes, blocks, pulleys and tackles.-When hangers, blocks, pulleys, stays, braces, ladders, irons or ropes of any swinging or stationary scaffolding used in the construction, alteration, repairing, painting, cleaning or pointing of buildings are unsafe or liable to prove dangerous to the life or limb of any person, such commission shall immediately cause an inspection to be made of such scaffolding, or the slings, hangers, blocks, pulleys, stays, braces, ladders, irons or other parts connected therewith. If, after examination, such scaffolding or any of such parts is found to be dangerous to life or limb, the commission shall prohibit the use thereof, and require the same to be altered and reconstructed so as to avoid such danger. The commission shall attach a certificate to the scaffolding, or the slings, hangers, irons, ropes, or other parts thereof

§ 20.

Protection of employees.

L. 1919, ch. 545. examined by it, stating that it has made such examination, and that it has found them safe or unsafe, as the case may be. If it declares them unsafe, it shall at once, in writing, notify the person responsible for their erection of the fact, and warn him against the use thereof. Such notice may be served personally upon the person responsible for their erection, or by conspicuously affixing it to the scaffolding, or the part thereof declared to be unsafe. After such notice has been so served or affixed, the person declared responsible therefor shall immediately remove such scaffolding or part thereof and alter or strengthen it in such manner as to render it safe, in the discretion of the officer who has examined it, or of his superiors. The commission and any of its deputies whose duty it is to examine or test any scaffolding or part thereof, as required by this section, shall have free access, at all reasonable hours, to any building or premises containing them or where they may be in use. All swinging and stationary scaffolding shall be so constructed as to bear four times the maximum weight required to be dependent therefrom or placed thereon, when in use, and not more than four men shall be allowed on any swinging scaffolding at one time. (Amended by L. 1919, ch. 545.)

§ 20. Protection of persons employed on buildings.-All contractors and owners, when constructing buildings where the plans and specifications require the floors to be arched between the beams thereof, or where the floors or filling in between the floors are of fireproof material or brickwork, shall complete the flooring or filling in as the building progresses. If the plans and specifications of such buildings do not require filling in between the beams of floors with brick or fire-proof material all contractors for work, in the course of construction, shall lay the underflooring thereof on each story as the building progresses. Where double floors are not to be used, such contractor shall keep planked over the floors two stories below the story where the work is being performed. If the floor beams are of iron or steel, the contractors for the iron or steel work of buildings in course of construction or the owners of such buildings shall thoroughly plank over the entire tier of iron or steel beams and extending not less than six feet beyond such beams on which the structural iron or steel work is being erected, except such spaces as may be reasonably required for the proper construction of such iron or steel work, and for the raising or lowering of materials to be used in the construction of such building, or such spaces as may be designated by the plans and specifications for stairways and elevator shafts. If elevators, elevating machines or hod-hoisting apparatus are used within a building in the course of construction, for the purpose of lifting materials to be used in such construction, the contractors or owners shall cause the shafts or openings in each floor to be inclosed or fenced in on all sides by a barrier at least eight feet in height, except on two sides which may be used for taking off and putting on materials, and those sides shall be guarded by an adjustable barrier not less than three