
    Erie Railroad Company, Plaintiff, v. Department of Labor of the State of New York and Others, Defendants.
    Third Department,
    June 30, 1931.
    
      H. A. Taylor [H. H. Hull of counsel], for the plaintiff.
    
      Charles G. Blakeslee [Sherman Ward of counsel], for the defendant Public Service Commission.
    
      John J. Bennett, Jr., Attorney-General [F. R. Chant, Deputy Assistant Attorney-General, of counsel], for the remaining defendants.
   Whitmyer, J.

Whether or not article 8-A of the Labor Law applies to alterations or changes in existing highway bridges, carrying highways over railroads, or in structures, including railroad bridges, for carrying highways under the grade of a railroad, or in approaches to such crossings, where there is no existing crossing, at grade, is the only question for determination.

Plaintiff asks for an answer in the negative, the departments ask for one in the affirmative.

Six cases are involved. In each of four cases the bridge was constructed at the time when the railroad was constructed. In one the railroad was constructed in 1851 and the bridge in 1889. And in another the railroad was constructed in 1851 and the bridge in 1904, but the original cost of the bridge was paid, fifty per cent by the railroad company, and twenty-five per cent each by the county and State.

All of said bridges were built at the expense of the railroad company, except in the last case, and it does not appear that any alteration was ever made in any of them. The work directed is to be done by contract.

Article 8-A, entitled “ Grade crossing elimination work; hours and wages,” was added to the Labor Law by chapter 804 of the Laws of 1930, entitled “An Act to amend the Labor Law in relation to regulating the hours of work and labor and the wages of laborers, workmen and mechanics employed on railroad grade crossing eliminations.” "

Section 225 thereof prescribes the “ Hours of labor and wages on work of elimination of grade crossings.” It provides that “All work of every kind upon the elimination of railroad grade crossings ” under article 7, section 14 of the Constitution and certain statutes, which are specified, “ or under the Railroad Law * * * for the cost of which work the State and /or its civil divisions is hable in any proportion is hereby declared to be public work for the State and/or its civil divisions,” to which the provisions of the act shall apply;

Plaintiff claims that the word “ elimination,” as used in the act, refers only to a future elimination, and that the act does not apply.

The statute covers “ All work of every kind upon the elimination of railroad grade crossings ” under the Constitution or certain acts, “ or under the Railroad Law.”

Sections 89, 90 and 91 of the Railroad Law relate to ehmination work and section 91 thereof relates to alteration of existing crossings.

Section 91 is very broad and, among other situations, covers a change in the existing structure by which such crossing is made.”

In the cases before us the bridges were built when the railroad was constructed, or many years before the alterations in question were directed.

However, there is a crossing, whether a railroad passes over a highway at grade or above or below grade. And, if the crossing at grade has been eliminated and a subsequent alteration is made, it is still ehmination work, whether it is done as an alteration or not.

When the alteration is made it becomes a part of the elimination. It is elimination work. The statute covers All work of every kind upon the elimination.”

Upon the facts as stipulated and which are found, defendants are entitled to decision and judgment that article 8-A of the Labor Law applies to alterations or changes in existing highway bridges, carrying highways over railroads or to structures, including railroad bridges, for carrying of highways under the grade of a railroad, or in approaches to such crossing, where there is no existing crossing at grade, and judgment is directed accordingly.

All concur.

Judgment rendered for defendants, without costs, finding, as a conclusion of law upon the facts submitted, that article 8-A of the Labor Law applies to alterations or changes in existing highway bridges, carrying highways over railroads or to structures, including railroad bridges, for carrying of highways under the grade of a railroad, or in approaches to such crossing, where there is no existing crossing, at grade.  