180 Misc. 81 | N.Y. App. Term. | 1943
Judgment unanimously reversed upon the law, with costs to defendant Del Balso & Sprague, Inc., and complaint dismissed, with costs.
By the terms of the Act an employer must pay prescribed minimum wages “ to each of his employees who is engaged in commerce or in the production of goods for commerce ” and overtime compensation must be paid “ any of his employees who is engaged in commerce or in the production of goods for commerce — ”. (U. S. Code, tit. 29, §§ 206, 207.) Production of goods for commerce is defined in section 203, subdivision (j): “ for the purposes of this chapter an employee shall be deemed to have been engaged in the production of goods [for commerce] if such employee was employed in producing, manufacturing, mining, handling, transporting, or in any other manner working on such goods, or in any process or occupation necessary to the production thereof, in any State.” (Italics supplied.) The definition of commerce is far more restricted. It il means trade, commerce, transportation, transmission, or communication among the several States or from any State to any place outside thereof.” [§ 203, subd. (b).] The statute was not intended to regulate the entire field of interstate commerce which the Congress could constitutionally regulate. (Kirschbaum Co. v. Walling, 316 U. S. 517, 522, 523.) The limitations of the statute are implicit in the distinction between the two categories of employment — ‘‘ production of
In this case plaintiff was not engaged in the production of goods for commerce or in any occupation necessary to the production thereof. He could therefore be held within the coverage of the Act only if he was engaged in commerce.
Until actually used to carry interstate traffic a highway constructed on a site where no highway existed before is not an instrumentality of interstate commerce and consequently work performed in the construction of such highway cannot be regarded as employment “ in commerce ” within the meaning of the Act. Plaintiff’s entrance upon the existing intersecting streets for the purpose of placing lanterns on the barricades surrounding the catch basin excavations was merely incidental to and did not affect the character of his employment as a watchman on the new highway being constructed. Furthermore, the presence on the intersecting streets of an undescribed number of vehicles bearing licenses of other states does not in and of itself justify the conclusion that these streets were used by persons and goods passing between the various states.
Since plaintiff was not engaged “ in commerce ” he did not come within the coverage of the Act. Ho opinion.
MaoCrate, Smith and Steinbrink, JJ„ concur.