259 A.D. 691 | N.Y. App. Div. | 1940
The controversy is submitted upon facts stipulated between the parties pursuant to sections 546-548 of the Civil Practice Act.
The defendant owns and operates three loft buildings in the city of New York. It employs elevator operators, porters, watchmen, mechanics, engineers, carpenters, supervisors and clerks to service and maintain its buildings. These employees are hired, paid and controlled by the defendant and subject to discharge only by the defendant. The defendant leases its premises to various manufacturers of ladies’ garments, most of whom import raw materials from other States and ship finished garments throughout the United, States.
The plaintiffs seek to recover wages for overtime and liquidated damages pursuant to subdivision (a)-of section 7 and subdivision (b) of section 16 of the Fair Labor Standards Act of 1938.
Section 3 defines “ commerce ” as follows:
“ (b) ‘ Commerce ’ means trade, commerce, transportation, transmission, or communication among the several States or from any State to any place outside thereof.”
That section also contains the following definition of the term “ produced.”
It is manifest, and, indeed, appears not to be disputed, that the plaintiffs, a watchman and a carpenter employed in connection with the operation of the defendant’s loft building, were not engaged “ in producing, manufacturing, mining, handling, transporting, or in any other manner working on ” the goods destined for interstate commerce by the tenants who occupied portions of the defendant’s premises, but it is contended that they were engaged in a “ process or occupation necessary to the production thereof.” That contention cannot be sustained without subjecting to the provisions of the act industry which is plainly intrastate in character and without engendering doubts, to be avoided, if possible, concerning the validity of the law. (Missouri Pacific R. R. Co. v. Boone, 270 U. S. 466; Schieffelin v. Goldsmith, 253 id. 243.) For, if the act applies to a watchman and a carpenter employed in the defendant’s building as persons engaged in a “ process or occupation necessary to the production ” by the tenants of the building of goods for commerce, then it must apply-equally to the manufacturer of the tools used in his work by the carpenter or of a time clock maintained by the defendant to be used by the watchman in the course of his patrol, since these are no less “ necessary to the production ” of the goods manufactured by the tenants of the building than the employees themselves.
We think the statute does not include such employees when they are not the employees of a manufacturer who is engaged in interstate commerce. Concededly the statute would include those employees of a manufacturer who produced the goods. It may include a watchman or a carpenter employed by the manufacturer, even though such employees are not directly engaged in production of the goods, because they may be said to be employed in an “ occupation necessary to the production thereof.” (Jacobs v. Coppersmith & Sons, Inc. [U. S. D. C., E. D. of N. C.], Jan. 30, 1940.)
Judgment should, accordingly, be directed in favor of the defendant, but without costs.
Martin, P. J., O’Malley, Townley and Dore, JJ., concur.
Judgment unanimously directed in favor of the defendant, without costs. Settle order on notice.
See U. S. Code, tit. 29, chap. 8.-— [Rep.
No opinion for publication. — [Rep.