8 2 Short Title; Definitions L. 1909, ch. 36 66 § 2. Definitions. Employee. The term employee," when used in this chapter, means a mechanic, workingman or laborer who works for another for hire. Employer. The term "employer," when used in this chapter, means the person employing any such mechanic, workingman or laborer, whether the owner, proprietor, agent, superintendent, foreman or other subordinate. Factory: work for a factory. The term factory when used in this chapter, shall be construed to include any mill, workshop, or other manufacturing or business establishment and all buildings, sheds, structures or other places used for or in connection there with, where one or more persons are employed at labor, except dry dock plants engaged in making repairs to ships, and except power houses, generating plants, barns, storage houses, sheds and other structures owned or operated by a public service corporation, other than construction or repair shops, subject to the jurisdiction of the public service commission under the public service commis sions law. Work shall be deemed to be done for a factory within the meaning of this chapter whenever it is done at any place, upon the work of a factory or upon any of the materials entering into the product of the factory, whether under contract or arrangement with any person in charge of or connected with such factory directly or indirectly through the instrumentality of one or more contractors or other third persons. Factory building. The term "factory building," when used in this chapter, means any building, shed or structure which, or any part of which, is occupied by or used for a factory. Mercantile establishment. The term "mercantile establishment," when used in this chapter, means any place where goods, wares or merchandise are offered for sale. Tenement house. The term " tenement house," when used in this chapter, means any house or building, or portion thereof, which is either rented, leased, let or hired out, to be occupied, or is occupied in whole or in part as the home or residence of three families or more living independently of each other, and doing their cooking upon the premises, and includes apartment houses, flat houses and all other houses so occupied, and for the purposes of this chapter shall be construed to include any building on the same lot with any such tenement house and which is used for any of the purposes specified in section one hundred of this chapter. Whenever, in this chapter, authority is conferred upon the commissioner of labor, it shall also be deemed to include his deputies or a deputy acting under his direction. Amended to read as above by L. 1913, ch. 529, § 1; L. 1914, ch. 512; L. 1915, ch. 650. The last two amendments affected the third paragraph only. Tenant-factory defined: see infra, § 94. Tenement house: see TENEMENT HOUSE LAW, § 2. Bakeries and confectioneries: see infra, § 111. Laundries: see infra, § 92. 66 'Employee."-The definition of employees does not include public officers or others holding positions under a city who are included in the classified lists of the Civil Service Law, such as uniformed members of the fire department. People v. Sturgis, (1903) 78 App. Div. 460, 79 N. Y. S. 969, affirmed (1903) 175 N. Y. 470, 67 N. E. 1088. It does not include a stenographer, accountant, typist, chainman, levelman, civil engineer, bookkeeper, draftsman, rodman, structural designer or clerk in the office of a railway. People v. Interborough Rapid Transit Co., (1915) 169 App. Div. 32, 154 N. Y. S. 627. To like effect as to a bookkeeper is Cochran v. A. S. Baker Co., (1899) 30 Misc. 48, 61 N. Y. S. 724. Nor does it include a child employed in the industrial department of a charitable institution. Op. AttyGen. (1901) 196. However, a carpenter falls within the definition of "employee." Caddy v. Interborough Rapid Transit Co., (1908) 125 App. Div. 681, 110 N. Y. S. 162, affirmed (1909) 195 N. Y. 415. And the term includes one engaged in making blueprints for a railway, as well as an office boy, a telephone switchboard operator, a chauffeur and a matron engaged in welfare work. People v. Interborough Rapid Transit Co., (1915) 169 App. Div. 32, 154 N. Y. S. 627. Whether the term includes conductors, trainmen and locomotive engineers is a question which has been raised but not decided. New York Cent., etc., R. Co. v. Williams, (1910) 199 N. Y. 108, 92 N. E. 404, 139 A. S. R. 850, 35 L. R. A. (N. S.) 549. 66 Employer."- The term " employer includes the officers, agents and employees of a municipality, who act for it in employing labor. Op. Atty.Gen. (1913) 596. 66 "Business establishment."- The term "business establishment," as used in the definition of "factory," means one resembling a mill, workshop or other manufacturing establishment. It is confined to things of the same general character as those named. It does not mean all business establishments where one or more persons are employed at labor, but only those engaged to some extent at least in manufacturing of some kind." Shannahan v. Empire Engineering Corp., (1912) 204 N. Y. 543, 98 N. E. 9, 44 L. R. A. (N. S.) 1185, not citing but in effect overruling Rabe v. Consolidated Ice Co., (1902) 113 Fed. 905, 51 C. C. A. 535, holding that the rule of ejusdem generis did not apply. The term "business establishment" does not include a hotel, grocery store or other like establishment. Shannahan v. Empire Engineering Corp., (1912) 204 N. Y. 543, 98 N. E. 9, 44 L. R. A. (N. S.) 1185. 66 Factory" generally. A factory is a structure or plant where something is made or manufactured from raw or partly wrought materials into forms suitable for use. This is the primary definition which was extended by the statute so as to include any mill, workshop or other manufacturing or business establishment where one or more persons are employed at labor." Shannahan v. Empire Engineering Corp., (1912) 204 N. Y. 543, 98 N. E. 9, 44 L. R. A. (N. S.) 1185, quoted in O'Connor v. Webber, (1914) 163 App. Div. 175, 147 N. Y. S. 1053. "In the language of the Labor Law the word factory' frequently appears to be used interchangeably with the word 'building,' and the word 'owner' seems in certain places to refer to the § 2 Short Title; Definitions L. 1909, ch. 36 owner of the building, in others the owner of the factory or manufacturing establishment. The expression tenant of a factory' may be confused with the term 'tenant of a building.'" People v. Harris, (1911) 74 Misc. 353, 134 N. Y. S. 409. The definition of "factory" is not a specific one but is merely a provision that certain establishments shall fall within the term. Shannahan v. Empire Engineering Corp., (1912) 204 N. Y. 543, 98 N. E. 9, 44 L. R. A. (N. S.) 1185. And whether a place is a factory is a question of law and not of fact. Continental Public Works Co. v. Stein, (1916) 232 Fed. 559, 146 C. C. A. 517. The definition of " factory was merely stated in People v. Pullman, (1915) 166 App. Div. 99, 151 N. Y. S. 741; People v. Harris, (1911) 74 Misc. 353, 134 N. Y. S. 409; Minsky v. Weller, (1909) 63 Misc. 244, 116 N. Y. S. 628. It was quoted in Op. Atty.-Gen. (1915) 122, in connection with the construction of the scope of section 8a, infra. See infra, § 8a note. “Mercantile establishment” and “factory” distinguished.— The distinction between a mercantile establishment and a factory is clearly recognized and defined by this section. Lowry v. Anderson Co., (1904) 96 App. Div. 465, 89 N. Y. S. 107. 66. 66 Particular establishments as factories.-A bookbinding establishment is a. factory," under this section. People v. Williams, (1906) 116 App. Div. 379, 101 N. Y. S. 562, affirming 51 Misc. 383, 100 N. Y. S. 337, affirmed (1907) 189 N. Y. 131. So also are manufacturing departments of clothing and millinery stores. Op. Atty.-Gen. (1913) 352. And bakeries are included in the definition of factory" by section 111. People v. Pullman, (1915) 166 App. Div. 99, 151 N. Y. S. 741. Also " a commercial icehouse, which is extensively equipped with machinery, and in which numerous operatives are employed, is a factory, within the meaning of the statute." Rabe v. Consolidated Ice Co., (1902) 113 Fed. 905, 51 C. C. A. 535. Similarly a cold storage plant may also be a factory where it is used in part for the manufacture of ice. Op. Atty.-Gen. (1913) 688. A railroad repair shop is a factory, and a heating plant whether in the building or not is a part of the factory. Op. Atty.-Gen. (1915) 122. Likewise a railway yard used in connection with a factory for the purpose of delivering its product to different carriers is a part of the factory. Op. Atty.-Gen. (1913) 688. And the business of running asphalt and stone through a mixer, producing a product to be used in a street, is manufacturing, and when the mixer is used in connection with other like road machinery this has been held to make it a factory. Continental Public Works Co. v. Stein, (1916) 232 Fed. 559, 146 C. C. A. 517. The term "factory," as defined by this section, does not include a towboat navigating a river. Shannahan v. Empire Engineering Corp., (1912) 204 N. Y. 543, 98 N. E. 9, 44 L. R. A. (N. S.) 1185. Nor is a waterworks pumping station a factory. Op. Atty.-Gen. (1913) 596. And by installing in a meat market an electric meat chopping machine in which meat is chopped as purchased by a customer, the owner does not convert the store into a tory," under this section. O'Connor v. Webber, (1914) 163 App. Div. 175, 147 N. Y. S. 1053. "fac Power houses. The words subject to the jurisdiction of the public service commission" in the definition of " factory" qualify the entire exception of power houses, etc. Previous to the amendment of 1914 the exception of power houses, etc., was confined such as were incident to a railway and did not except power houses which merely sold a large part of their output to railways. The amendment of 1914 makes the exception applicable to all power houses owned, operated or managed by an electrical corporation. People v. Niagara Falls Power Co., (1914) 86 Misc. 61, 149 N. Y. S. 45. Previous to the amendment of 1914 it was held that an electric light plant was a factory. Op. Atty.-Gen. (1913) 596. Cited. This section was cited in Johnson v. Onondaga Paper Co., (1906) 112 App. Div. 667, 98 N. Y. S. 602. L. 1909, ch. 36 General Provisions ARTICLE 2 GENERAL PROVISIONS Section 3. Hours to constitute a day's work. 4. Violations of the labor law. 5. Hours of labor in brickyards. 6. Hours of labor on street surface and elevated railroads. 7. Regulation of hours of labor on steam surface and other railroads. 8. Regulation of hours of labor of block system telegraph and telephone operators and signalmen on surface, subway and elevated railroads. 8-a. One day of rest in seven. 9. Payment of wages by receivers. 10: Cash payment of wages. 11. When wages are to be paid. 12. Penalty for violation of preceding section. 13. Assignment of future wages. 14. Preference in employment of persons upon public works. 15. Labels, brands and marks used by labor organiza tions. 16. Illegal use of labels, brands and marks, a misdemeanor; injunction proceedings. 17. Seats for female employees. 18. Scaffolding for use of employees. 19. Inspection of scaffolding, ropes, blocks, pulleys and tackles in cities. 20. Protection of persons employed on buildings in cities. 20-a. Accidents to be reported. 20-b. Protection of employees. 20-b. Switchboards to be protected. 21. Commissioner of labor to enforce provisions of article. 22. Duties relative to apprentices. 23. Physical examinations of employees. 24. Contributions to benefit or insurance fund. § 3 General Provisions L. 1909, ch. 36 § 3. Hours to constitute a day's work. Eight hours shall constitute a legal day's work for all classes of employees in this state except those engaged in farm and domestic service unless otherwise provided by law. This section does not prevent an agreement for over work at an increased compensation except upon work by or for the state or a municipal corporation, or by contractors or subcontractors therewith. Each contract to which the state or a municipal corporation or a commission appointed pursuant to law is a party which may involve the employment of laborers, workmen, or mechanics shall contain a stipulation that no laborer, workman or mechanic in the employ of the contractor, subcontractor or other person doing or contracting to do the whole or a part of the work contemplated by the contract shall be permitted or required to work more than eight hours in any one calendar day except in cases of extraordinary emergency caused by fire, flood or danger to life or property. The wages to be paid for a legal day's work as hereinbefore defined to all classes of such laborers, workmen or mechanics upon all such public works, or upon any material to be used upon or in connection therewith, shall not be less than the prevailing rate for a day's work in the same trade or occupation in the locality within the state where such public work on, about or in connection with which such labor is performed in its final or completed form is to be situated, erected or used. Each such contract hereafter made shall contain a stipulation that each such laborer, workman or mechanic, employed by such contractor, subcontractor or other person on, about or upon such public work, shall receive such wages herein provided for. Any person or corporation who violates any provision of this section shall be guilty of a misdemeanor and upon conviction shall be punished, for a first offense by a fine of five hundred dollars or by imprisonment for not more than thirtydays, or by both such fine and imprisonment; for a second offense by a fine of one thousand dollars, and in addition thereto, the contract on which the violation has occurred shall be forfeited; and no such person or corporation shall be entitled to receive any sum nor shall any officer, agent or employee of the state or of a municipal corporation pay the same or authorize its payment from the funds under his charge or control to any such person or corporation for work done upon any contract, on which the contractor has been convicted of a second offense in violation of the provisions |