
    The People of the State of New York, by John Mitchell and Others, Constituting the State Industrial Commission, Plaintiff, v. Interborough Rapid Transit Company, Defendant.
    First Department,
    July 9, 1915.
    Master and servant—Labor Law, section 11, construed — weekly payment of wages—who are “employees” within meaning of section-11 of Labor Law—payment by check — submission of controversy — power of Appellate Division where decision partly in favor of both parties.
    Under section 11 of the Labor Law, providing that certain corporations 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 engineers, 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.
    Since the Appellate Division, upon the submission of a controversy, has no power to pass upon moot questions or to act in an advisory capacity, where it is agreed that if the questions as to whether certain employees should be paid weekly be decided by the court in the affirmative, the plaintiff shall have a judgment for the penalty of fifty dollars in accordance with section 12 of the Labor Law, but if said questions be decided in favor of the defendant, the proceeding shall be dismissed, and a decision is made partly ip plaintiff’s favor and partly in favor of defendant, it will be assumed that it was the intention of the parties that the defendant should be liable for the penalty of fifty dollars in the event it was found to have violated the law in the case of any of the persons enumerated in the submission.
    Dowi/iNd, J., dissented, with opinion.
    Submission of a controversy upon an agreed statement of facts pursuant to section 1279 of the Code of Civil Procedure.
    
      Edward Quigley, for the plaintiff.
    
      John Montgomery, for the defendant.
   Hotchkiss, J.:

In the operation of the defendant’s railroad it has in its service the following persons, among others:

(A) A stenographer whose duties are to take dictation by shorthand and transcribe the same on a typewriter. Her compensation is at the rate of $960 per year, and she is paid $80 monthly.
(B) An accountant whose duties are with bills and payrolls. His compensation is at the rate of $1,500 per year, and he is paid $125 monthly.
(0) A typist, his duties being to copy papers by typewriter. His compensation is at the rate of $540 per year, and he is paid $45 monthly.
(D) A rodman, who assists civil engineers by carrying and holding the rods of graduated surveyors. His compensation is at the rate of $780 per year, and he is paid $65 monthly.
(E) A chainman, who assists civil engineers in surveying and inspecting railroad construction work by carrying a surveyor’s chain with which he measures. His compensation is at the rate of $600 per year, and he is paid $50 monthly.
(F) A levelman, who assists civil engineers in work similar to that of the chainman by carrying an engineer’s level and making mathematical calculations. His compensation is at the rate of $1,020 per year, and he is paid $85 monthly.
(G-) A blueprinter, whose duties are to prepare blueprints of plans and drawings. His compensation is at the rate of $480 per year, and he is paid $40 monthly.
(H) A civil engineer, who is employed under the principal assistant engineer and has charge of all elevated railroad improvements and extension work. His compensation is at the rate of $3,000 per year, and he is paid $250 monthly by defendant’s check drawn on a local bank convenient to the office with which said employee is connected.
(1) A matron, employed in defendant’s office at Ninety-eighth street and Third avenue, whose duties are in the nature of welfare work in assisting a large staff of telephone operators in the care of their rooms, preparation of their food, and similar details of their lives. Her compensation is at the rate of $420 per year, and she is paid $35 monthly.
(J) A civil engineer, who has charge of field work in constructing sections of elevated railroad improvements. His compensation is at the rate of $2,700 per year, and he is paid $225 monthly.
(K) A bookkeeper in the defendant’s office, who is occupied with the usual office work of a bookkeeper. His compensation is at the rate of $1,200 per year, and he is paid $100 monthly.
(L) A draftsman, who designs and drafts work connected with elevated railroad improvements and extensions. His compensation is at the rate of $1,800 per year, and he is paid $150 monthly.
(M) A chauffeur, who operates an automobile used by engineers in field work. His compensation is at the rate of $1,020 per year, and he is paid $85 monthly.
(N) A structural designer, who draws designs for elevated railroad structures and improvements preparatory to the preparation of plans therefor. His compensation is at the rate of $1,920 per year, and he is paid $160 monthly.
(O) An office boy, whose duty is to “run”' (sic) errands and perform the other customary work of an office boy. His compensation is at the rate of $300 per year, and he is paid $25 monthly.
(P) A telephone switchboard operator in defendant’s office, who makes telephonic connections on a telephone switchboard. Her compensation is at the rate of $600 per year, and she is paid $50 monthly.
(Q) A clerk in defendant’s office, who performs general office work of a clerical nature. His compensation is at the rate of $1,080 per year,, and he is paid $90 monthly.

All of the foregoing persons are paid in cash with the exception of “H,” the civil engineer.

The questions submitted for our determination are:

(1) Do all of the foregoing persons come within article 2, section 11, of the Labor Law ? and (2) if not, do any of them, and, if so, which ones ? (3) Does the payment of the civil engineer (H) by check as hereinbefore recited constitute a compliance with section 10 of article 2 of the Labor Law ?

(A) Section 11, above referred to, requires every corporation (except such as operate steam surface railroads, as to which a different provision is made) to pay weekly to each employee the wages earned hy him to a day not more than six days prior to the date of such payment. ” Section 2 of article 1 of the Labor Law (Consol. Laws, chap. 31 [Laws of 1909, chap. 36], as amd. by Laws of 1913, chap. 529) defines the term “ employee ’ to mean a mechanic, workingman or laborer who works for another for hire. ” I think it unnecessary, in view of this simple and precise definition, to have recourse to the decisions to which we are cited, where the terms used in statutes preferring, in cases of insolvency, the claims of various classes of wage-earners, workers or other employees have been defined. This court has recently reviewed many of this class of decisions in Farnum v. ■Harrison (167 App. Div. 704). Each statute must necessarily be largely a law unto itself, and its proper interpretation must depend upon its own particular language. The statutory definition, which we have here to guide us, prevents any peculiar force being attached to the terms “ wages ” and employee, ’ and confines us to the simple inquiry whether, among the persons enumerated in the submission, there are any who are properly to be classed as mechanics, workingmen or laborers, as those terms are ordinarily and naturally used.

It scarcely needs argument to show that the following are not within the defined classes: Stenographer, accountant, typist, chainman, levelman, civil engineers (H and J), bookkeeper, draftsman, structural designer, clerk. The case of the rodman is not so clear. His work is apparently largely of a manual nature, but as his duty is to assist civil engineers ” in their work, I think that we may infer that he belongs to the engineering staff, although in an humble capacity, rather than among the workingmen or laborers, and is accordingly not within the statutory definition. The blue-printer is also on the border line, but I am inclined to think that he may upon a liberal construction be deemed to be a workingman, as is the office boy. The matron, upon a similar construction, should be classed as a workingwoman, as should the telephone switchboard operator. The chauffeur is (or ought to be) a mechanic, but in any case he is a workingman.

(B) Section 10, above referred to, requires various classes of corporations of which defendant is one to pay to each employee * * * the wages earned by such employee in cash,” and prohibits payment in scrip or store orders. The statutory definition of the term “employee” to which I have hereinbefore referred applies as well to section 10 as to section 11. It is clear, therefore, that the civil engineer (H), inasmuch as he is not a workingman, mechanic or laborer, is not within the statute, and payment of his compensation by check is lawful.

In respect of the form of the judgment to be entered the submission is equivocal. The submission states: “It is agreed that if the questions above stated be decided by the court in the affirmative, the plaintiff shall have a judgment for a penalty of $50, in accordance with section 12 of article 2 of the Labor Law; but if said questions above stated be decided in favor of the defendant, the defendant shall have judgment to the effect that it is not liable to any penalty, and shall be entitled to the dismissal of this proceeding.” Both parties waive costs. No provision, in terms at least, seems to have been made for a decision partly in plaintiff’s favor and partly in favor of defendant. But inasmuch as we have no power to pass upon moot questions, or to act in an advisory capacity merely, I assume that it was the intention of the parties that defendant should be cast for a penalty of fifty dollars in the event it was found to have violated the law in the case of any of the persons enumerated in the submission.

Therefore, there should be judgment for plaintiff for fifty dollars.

Ingraham, P. J., Clarke and Sgott, JJ., concurred; Dowling, J., dissented.

Dowling, J. (dissenting):

The Commissioner of Labor heretofore gave notice to defendant pursuant to section 21 of the Labor Law (Consol. Laws, chap. 31; Laws of 1909, chap. 36) to comply generally with the provisions of section 11 of the Labor Law by paying the employees enumerated in this submission weekly instead of monthly. Having in mind the beneficent purpose which the Legislature had in view in the passage of the statute in question, of protecting employees from unscrupulous employers who by deferring the payment of the wages due them might ultimately defraud them of the fruits of weeks of labor, amounting in the aggregate to large sums, such a construction should be .given to the provisions of the law as will extend its protection to as wide a field of labor as possible, consistent with the language used therein. The statute is not a penal or preferential one, as was the case where the term “employee” has been limited in its meaning, but is one involving an exercise of the police power of the State and should be liberally construed. So viewed, the definition of an employee in section 2 of article 1 of the Labor Law (as amd. by Laws of 1913, chap. 529) as “a mechanic, workingman or laborer who Avorks for another for hire,” taken in conjunction with the term “wages” used in section 11 thereof, appears to me to clearly indicate the employees whom the statute was intended to protect as those engaged in manual or mechanical labor, as distinguished from those occupying professional or executive positions, and who were paid on the smaller scale of wages rather than on the higher one of salary.. It was these subordinates embraced in •the first class, whose dependence on their toil made the loss of any of its recompense a serious matter to them, and whose comparative helplessness to assert their right to the prompt reward of their labor, whom the State was solicitous of protecting, rather than the better paid and more independent members of the second class. This being so, it would seem that the following employees of defendant are not within the scope of the statute: (H) A civil engineer in charge of elevated railroad improvements and extension work, both office and field, at a yearly salary of $3,000; (J) a civil engineer in charge of field work in constructing sections of elevated railway at a yearly salary of $2,700; (L) a draftsman who designs and drafts in connection with elevated railroad improvements and extensions at an annual salary of $1,800; (N) a structural designer, drawing designs for elevated railroad structures, at an annual salary of $1,920. The remaining employees referred to in the submission I think all come under the scope of the statute, viz.: (A) A stenographer; (B) an accountant; (0) a typist; (D) a rodman, who assists civil engineers by carrying and holding graduated surveyors’ rods used in their work; (E) a chainman, who assists civil engineers by carrying and measuring with a surveyor’s chain; (F) a levelman, who assists civil engineers by using an engineer’s level; (G) a blueprinter; (I) a matron, who assists a large staff of telephone operators in caring for their rooms, preparation of their food and the like; (K) a bookkeeper; (M) a chauffeur; (0) an office boy; (P) a telephone switchboard operator; (Q) a clerk doing general work.

Judgment directed for plaintiff for fifty dollars. Order to be settled on notice. 
      
       See Consol. Laws, chap. 31 (Laws of 1909, chap. 36), § 12, as amd. by Laws of 1909, chap. 206. See, also, Laws of 1915, chap. 674, §§ 6, 7.— [Rep.
     