
    Patrick J. Downey, Appellant, v. Harry H. Bender, as Superintendent of Public Buildings of the State of New York, and Others, Defendants, Impleaded with The Municipal Gas Company, Respondent.
    
      Labor Law —• it does not apply to a contract to furnish gas and. electricity to State buildings—quiere as to furnishing “renewals and repairs of arc lamps”— pleading. '
    
    Section 3 of the Labor Law (Laws of 1897,. chap: 415, as amd. by Laws of 1899, chap. 567), providing that each contract to which the State is a party and which involves the employment of labor shall contain a stipulation that no employee ■ of the contractor shall be permitted of required to work more than eight hours . in any one calendar day, is limited to contracts for1 “ public work.”
    A contract made between a corporation engaged in manufacturing and furnishing gas and electricity for lighting and heating purposes, and the State of New York by which the corporation agrees to furnish sufficient gas and electricity to light and heat the New Capitol and Executive Mansion at" Albany, is a, con- ' tract for the purchase'of a commodity and not a contract for a “public work.”
    A provision in the contract by which the corporation agrees to “ furnish and supply all needed f * * renewals and repairs of arc lamps,” even if construed as an agreement to furnish labor, does not impress its character upon the entire contract; in any event the fact that the employees of the corporation engaged in furnishing such renewals and repairs were required or permitted . to work more than eight hours in one calendar day is not available, in an action brought by a citizen to annul the contract, unless it is alleged in the complaint.
    Appeal by the plaintiff, Patrick J.' Downey, from a judgment of the Supreme Court in favor of • the defendant, The Municipal Gas Company, entered in the office of the clerk of the county of Albany on the 1st day of November, 1900, upon the decision of the court rendered after a trial at the Rensselaer Special Term sustaining a demurrer to the complaint.
    
      William E. Woollard, for the appellant.
    
      Reilly <& Hamilton, for the respondent.
   Kellogg-, J.:

The ground of demurrer discussed upon this appeal is that plaintiff’s complaint fails to state a cause of action. The plaintiff is not a party in interest, but brings the action as a citizen, and alleges that the Municipal Gas Company has a contract with the State of New York, and in the performance of its contract has violated the provisions of the so-called Labor Law (Chap. 415, Laws of 1897, as amd. by chap. 567, Laws of 1899), in that it has permitted or required laborers to work more than eight hours in one calendar day, and plaintiif, for that cause, brings this action to annul the contract, as he is permitted to do by that act. The allegations of the complaint are that the Municipal Gas Company was at all times mentioned in the complaint “ engaged in the manufacture and supply of gas and in the supply of electricity for lighting and heating purposes in the cities of Albany and Watervliet, N. Y.,” and the complaint sets forth in extenso the contract made with the State. While the plaintiff has no interest in the contract and cannot avail liimself of any breach of its conditions, it is necessary to look into the contract for the purpose of learning what was the nature of the thing the Municipal Gas Company undertook to do — and for that purpose only is it materia,!. Such an examination is necessary in order to discover whether the provisions of the Labor Law claimed to hav.e been violated in its performance are in fact provisions which properly apply to a contract of this nature. The material parts of the contract are as follows, viz. :

“The said.party of the first part (The Municipal Gas Company) covenants and agrees that it will furnish and supply for the use of the State, at the new capítol and executive mansion, in said city of Albany, and for the purpose of lighting the same, a sufficient quantity of electric current to supply and operate, at all times during the day and night, ninety-eight hundred and five (9805) sixteen (16) candle power incandescent lamps, and forty-six (46)' two thousand (2000) candle power arc lamps; and sufficient power to run and operate one elevator in the new capítol, and will also furnish and supply a sufficient quantity of gas of a suitable and proper quality for the lighting of the new capitel and executive mansion, and for the use ■of heating logs in said executive mansion. * * * The party of the first part also covenants and agrees that it will furnish and supply all needed renewals of incandescent lamps and all carbons, renewals and repairs of arc lamps.”

A further allegation of the complaint is, “ That the defendant, ■The Municipal Gas Company, during every hour of each day has furnished as aforesaid and does furnish for such buildings in its performance of said contract electricity and gas, both or either, and which is supplied from its common output. That in the manufacture of such products it employs workmen, laborers and mechanics-for the full period of twenty-four hours daily,” and it further alleges-that such workmen labor twelve hours each day. No violation of the-law is claimed on account of insufficiency of the wages paid'or because of failure to pay for overwork. It is' the contention of the plaintiff" that what the Municipal Gas Company has contracted to do is a. public work, and- that it must be done by laborers working only eight hours each day. The Municipal Gas Company claims that it-has contracted to do no public work or work for the State, and its-business of manufacturing and distributing gas and creating or accumulating and distributing electricity for general consumption -in- the-cities of Albany and Watervliet, as alleged in the complaint, is not. to be controlled by the provision of the Labor Law referred to; that the supply of gas and; electricity agreed to be furnished at tile Capitol, building and the Executive Mansion flows, as the complaint alleges,, from the “ common output ” of this defendant; that what it contracted to -supply and deliver at the Capitol and Executive Mansion-was a commodity, a finished product, usually metered and sold by "measure for daily consumption. '

For the purposes of this case we may concede that the Legislature-representing the State has the undoubted right to 'say that it will, not permit any laborer to work for it more than eight -hours in any day, or more than one hour for that matter, and that it has the right, also to say to the fiscal officers of the State that they shall' not com-tract for the labor of any man beyond a certain- number of hours-each day, and may restrict contractors and the sub-contractors on work for the State in like manner as to hours of labor: "We may also concede that the State might go even farther and refuse to pur-. chase any biiclc or stone or cement or ink or paper or ironware or indeed any commodity whatever in the production or manufacture of which labor was employed for a longer time than eight hours or a less number-of hours per day. No one disputes that. the. exercise of such power is a right which a private individual enjoys. It. is not, however, disputed, but conceded, that the State is powerless-, to limit the daily hours which one mail may work for another, and: the State has not the power to say that a laborer after he has wrought the number of hours permitted on public work may not, during the same day, work elsewhere for an unlimited time.

The question here is not what" the Legislature might enact, but what has it enacted ? It is concededly the statute law that (except persons regularly employed in State institutions) no person shall be employed directly to labor for the State more than eight hours in any one day. This includes all employment on any of the public works of the State, whether such works are being carried on by the State directly or through contractors or sub-contractors. This seems, stated in a general way, to be as far as the Legislature has gone in its restriction of hours of labor. It has apparently confined the restriction to that class of employment which is commonly known as public work.?’ That class of work the State has exclusive control of. It has never yet manifested any intention to exclude itself from the general market in its purchases or in its contracts for the purchase of any article whatever. When the State is engaged in public work and needs labor then it has plainly declared the limitation as to hours of labor; when the State requires the delivery of a manufactured article, whether for construction of public works or for consumption, it purchases, or contracts for the delivery, wherever it can for the lowest price. So far it has kept a free hand, and does not inquire how many hours each day any man labored in the production of the article needed.

The so-called Labor Law, so far as it pertains to this case, reads as follows, viz.: Each contract to which the State * * * 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, sub-contractor, 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. * * * The wages to be paid * * * upon all such public work 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, sub-contractor or other person, on, about or upon such public work, shall receive such wages, herein provided for, Each contract for such public work hereafter made shall contain a provision that the same shall be void,” etc. (§ 3, as. above amended.)

The intent of the Legislature seems to be here manifest to treat only of public work and of contracts relating thereto as hereinbefore stated.

The contract made by the Municipal Gas Company to supply and furnish a certain quantity of gas and a certain amount of electricity for daily consumption and for application as' power and to furnish incandescent lamps and ’ carbons’and to deliver all at the capítol building and the executive mansion cannot, it seems to me, be construed as in any sense a contract for or one- involving labor “ on, about or upon such public work.” It is more sensible' to construe this as a contract of purchase. Common knowledge warrants the statement that both gas and electricity may be and are stored and are sold by measure for heating, for illumination and for power. It is a marketable commodity within a reasonable radius of the place where manufactured or stored. Incandescent lamps and carbons are articles of common merchandise.

Attention is called to that portion of the contract by which the Municipal Gas Company is to “furnish and supply all needed ■* "x" * renewals and repairs of arc lamps,” and it is suggested that an agreement to supply “ repairs ” should be interpreted as an. agreement to do labor; this may be so, but that is not certain. “Repair” might be done by replacement of defective parts, and in such a thing, as an arc.lamp it is quite likely that is the usual method of repair, At any rate, it is, I think, to’o small a leaven to taint so large a contract; besides, if' labor on ^ repairs ” is complained of, it should be so stated in the complaint. It would not only be necessary to prove that men worked on repairs to arc lamps more than eight hours in any one day, but it would be necessary to so allege. This the complaint has failed to do. The allegation is, in substance, that laborers worked in making gas, electricity, furnishing lamps and carbons and repairs, all together more than eight hours each day.

The interlocutory judgment should be affirmed, with costs, with the usual leave to amend on payment of costs.

All concurred ; Parker, P. J., in result.

Interlocutory judgment affirmed, with costs, with usual leave to amend on the payment of costs.  