L. 1916, ch. 448.

Justices of the peace; books.

Code Civ. Pro. § 3146.

Mandate not setting forth circumstances of offense.-Order punishing an attorney for a criminal contempt of court examined, and held, insufficient to justify the act of the justice in that "the particular circumstances" of the offense were not set forth in the mandate of commitment as required by this section of the Judiciary Law. People ex rel. Bernstein v. La Fetra (1916), 171 App. Div. 269, 157 N. Y. Supp. 386.

§ 770. Final order directing punishment.

Disobedience of order directing payment of money.-Where it is clear that the disobedience of an order directing payment of a sum of money by the respondent as a person beneficially interested under section 3247 of the Code of Civil Procedure, in an action brought by plaintiff as assignee of respondent, defeats the remedy of plaintiff in the present action, the court is in duty bound to punish respondent as for a contempt under section 770 of the Judiciary Law; should it hereafter appear that respondent was unable to pay the amount so directed to be paid he may apply for relief under section 775 of the Judiciary Law. Basch v. Associated Features Booking Co. (1915), 92 Misc. 450, 156 N. Y. Supp. 162.

§ 773. Amount of fine.

A judgment debtor as a punishment for a contempt in disobeying an order to appear for an examination in supplementary proceedings may be fined in a sum not exceeding $250, but it must appear that the act of the judgment debtor either did or was calculated to defeat, impair or impede some right or remedy of the judgment creditor. Amendola v. Zema (1916), 93 Misc. 525, 157 N. Y. Supp. 273.

JUSTICES OF THE PEACE.

Code of Civil Procedure.

§ 3146. Town or city clerk to demand books, et cetera, upon death, et cetera, of justice. If a justice of the peace dies, or his office becomes otherwise vacant, the town or city clerk must demand and receive all books and papers, which belonged to the justice in his official capacity, from any person having them in his possession, and such clerk may make and issue a transcript of a judgment so rendered by such a justice of the peace and appearing upon the docket of such justice of the peace so on file in his office, and issue an execution upon any such judgment which has not been docketed in the office of the county clerk, upon receiving his fees for the same, which shall be the same now allowed a justice of the peace for issuing transcript of a judgment so rendered by such a justice of the peace and execution so issued by such clerk shall have the same force and effect as though the same had been issued by such justice of the peace during his term of office. (Amended by L. 1916, ch. 448, in effect Sept. 1, 1916.)

a

KINGS COUNTY.

Salaries of clerks to transfer tax appraisers; Tax L., § 229.

Transfer tax assistants and clerks in surrogate's court; Tax L., § 234.

Employee defined. People v. Interborough Rapid Transit Co. (1915), 169 App. Div. 32, 154 N. Y. Supp. 627.

§ 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 thirty days, 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 of this section. Nothing in this section shall be construed to apply to

L. 1916, ch. 152.

Violations.

§ 4, 8a, 11.

stationary firemen in state hospitals nor to other persons regularly employed in state institutions, except mechanics, nor shall it apply to engineers, electricians and elevator men in the department of public buildings during the annual session of the legislature, nor to the construction, maintenance and repair of highways outside the limits of cities and villages. (Amended by L. 1909, ch. 292, L. 1913, chs. 467, 494, and L. 1916, ch. 152, in effect Apr. 7, 1916.)

The provisions of this section are all mandatory, and the fact that a railroad made its estimate upon a contract with the state upon a ten-hour per day basis, cannot relieve it or the state officials from full compliance with the statute. Contracts should not be made by the state with a railroad company or any other public service corporation, relieving it or them from full compliance with the eight-hour provisions of the Labor Law. Atty. Genl. Opin., 6 State Dep. Rep. 494 (1916).

Pleading.—A defense that a contractor for municipal work violated the Labor Law by requiring or permitting his employees to work more than eight hours a day must be pleaded as an affirmative defense, and the answer must negative the application of the exception in the statute with respect to extraordinary emergencies. Molloy v. Village of Briarcliff Manor (1916), 217 N. Y. 577, affg. 158 App. Div. 456.

§ 4. Violations of the labor law.-Any officer, agent or employee of this state or of a municipal corporation therein having a duty to act in the premises who violates, evades or knowingly permits the violation or evasion of any of the provisions of this chapter shall be guilty of malfeasance in office and shall be suspended or removed by the authority having power to appoint or remove such officer, agent or employee; otherwise by the govAny citizen of this state may maintain proceedings for the suspension or removal of such officer, agent or employee who knowingly permits the violation of any of the provisions of this chapter. (Amended by L. 1916, ch. 152, in effect Apr. 7, 1916.)

ernor.

§ 8-a. One day of rest in seven.

Constitutionality.-Subdivision 3 of this section, providing that before operating on Sunday, every employer shall post in a conspicuous place on the premises a schedule containing a list of his employees who are required or allowed to work on Sunday, and designating the day of rest for each, and shall file a copy of such schedule with the Commissioner of Labor, and subdivision 4, providing that every employer shall keep a timebook showing the names and addresses of all employees and the hours worked by each of them in each day, and such timebook shall be open to inspection by the Commissioner of Labor, are valid, reasonable and constitutional. People v. Eberhart (1916), 171 App. Div. 458, 157 N. Y.

Supp. 133.

Failure to post list of employees.-An employer may be convicted for violating the Penal Law in failing to post a list of employees and file a copy thereof before. operating on Sunday, as required by subdivision 3 of section 8a of the Labor Law,

although

one of the employees testified that her rest day had been the previous

Thursday. People v. Eberhart (1916), 171 App. Div. 458, 157 N. Y. Supp. 133.

$11.

When wages are to be paid.

"Employee" within meaning of section.-Under the provision that certain cor

§§ 18, 20.

Scaffolding; protection of laborers.

porations shall "pay weekly to each employee the wages earned by him," and under section 2 of said statute, defining the term "employee" to mean "a mechanic, workingman or laborer who works for another for hire," a stenographer, accountant, typist, chainman, levelman, civil engineer, rodman, bookkeeper, draftsman, structural designer and a clerk employed by a street railway company are not employees within the meaning of the statute. But a maker of blue prints, an office boy, a matron, a telephone switchboard operator and a chauffeur employed by such corporation are employees within the meaning of the statute. Since a civil engineer is not a workingman, mechanic or laborer, payment of his compensation by check is lawful. People v. Interborough Rapid Transit Co. (1915), 169 App. Div. 32, 154 N. Y. Supp. 627.

§ 18. Scaffolding for use of employees.

Application of section.-Pierce v. Atlantic, Gulf & Pacific Co. (1915), 216 N. Y. 209; Slaviz v. Wahlig & Sousin Co. (1915), 167 App. Div. 658, 153 N. Y. Supp. 54. This section is applicable, although the injured party built or helped to build the scaffold. New York, N. H. & H. R. R. Co. v. Mooney (1915), 223 Fed. 626. "Scaffolding."-A temporary platform consisting of a plank placed between two girders on which an employee was working constitutes a "scaffolding" within the meaning of the statute. New York, N. H. & H. R. R. Co. v. Mooney (1915), 223 Fed. 626.

Employer not an insurer.-Although a scaffold must be safe, suitable and proper, the master is not made an insurer, and where a servant was injured while endeavoring to level up a scaffold suspended by ropes the obligation of the master must be considered with reference to the method of adjustment taken by the servant. Griffin v. Pennsylvania Steel Co. (1916), 171 App. Div. 675, 157 N. Y. Supp. 65. Injury to servant by master's failure to furnish a safe and suitable scaffold; questions for the jury.-Plaintiff, who was in defendant's employ, was injured while engaged in the erection of a building and brings this action under the provisions of the Labor Law, by which it is made the duty of the defendant to furnish such safe, suitable and proper scaffolds as were reasonably necessary for the safety of his employees. Upon examination of the facts, held, that the jury could шave found that a scaffold was reasonably necessary for the plaintiff's use in the work in which he was engaged and required to do at the particular place where the accident occurred, and that it was for the jury to say whether the plaintiff under all the circumstances was guilty of contributory negligence. Bidwell v. Cummings (1916), 217 N. Y. 542.

Fall from defective scaffold; evidence justifying verdict for plaintiff.-Action to recover for the death of the plaintiff's intestate, who, while employed as a carpenter by the defendant, fell from a scaffold which was alleged to have been defective under section 18 of the Labor Law, in that the floor boards were not fastened down and because there was no railing. There was evidence of the defective condition of the platform, but the defendant contended that the platform was being removed at the time of the accident and that the decedent was actually engaged in tearing it down. On all the evidence, held, that, although the weight of evidence was in favor of the defendant, there was sufficient evidence to justify a verdict for the plaintiff. Rice v. Cummings Construction Co. (1915), 169 App. Div. 832, 155 N. Y. Supp. 766.

§ 20. Protection of persons employed on buildings in cities.

Duty to lay floor.-There is no absolute duty on the part of the owner or contractor under this section of the Labor Law, as amended, to floor or fill in all of the ground floor space. Ithaca Trust Co. v. Driscoll Brothers & Co. (1915), 169 App. Div. 377, 154 N. Y. Supp. 1027.

L. 1916, ch. 465.

Employment certificates; issuance.

§§ 21, 71.

See generally, Slaviz v. Wahlig & Sousin Co. (1915), 167 App. Div. 658, 153 N. Y. Supp. 54.

§ 21. Commissioner of labor to enforce provisions of article. The commissioner of labor shall enforce all the provisions of this article. He shall investigate complaints made to him of violations of such provisions and if he finds that such complaints are well founded he may issue an order directed to the person or corporation complained of, requiring such person or corporation to comply with such provisions, or he may present to the district attorney of the proper county all the facts ascertained by him in regard to the alleged violation, and all other papers, documents or evidence pertaining thereto, which he may have in his possession. The district attorney to whom such presentation is made shall proceed at once to prosecute the person or corporation for the violations complained of, pursuant to this chapter and the provisions of the penal law. If complaint is made to the commissioner of labor that any person contracting with the state or a municipal corporation for the performance of any public work fails to comply with or evades the provisions of this article respecting the payment of the prevailing rate of wages, the requirements of hours of labor or the employment of citizens of the United States or of the state of New York, the commissioner of labor shall, if he finds such complaints to be well founded, present evidence of such non-compliance to the officer, department or board having charge of such work. Such officer, department or board shall thereupon take the proper proceedings to enforce compliance with the provisions of this article. (Amended by L. 1916, ch. 152, in effect Apr. 7, 1916.)

§ 71. Employment certificate, how issued.-Such certificate shall be issued by the commissioner of health or the executive officer of the board or department of health of the city, town or village where such child resides or is to be employed, or by such other officer thereof as may be designated by such board, department or commissioner for that purpose, upon the application of the parent, guardian or custodian of the child desiring such employment. Such officer shall not issue such certificate until he has received, examined, approved and filed the following papers duly executed, namely: The school record of such child properly filled out and signed as provided in this article; also, evidence of age showing that the child is fourteen years old or upwards, which shall consist of the evidence thereof provided in one of the following subdivisions of this section and which shall be required in the order herein designated as follows:

(a) Birth certificate; passport or baptismal certificate. A duly attested transcript of the birth certificate filed according to law with a registrar of vital statistics or other officer charged with the duty of recording or a passport; or a duly attested transcript of a certificate of baptism showing the date of birth of such child.

births:

(b)

Other documentary evidence. In case it shall appear to the satis