DECISIONS OF NEW YORK COURTS.

What Constitutes Second or Third Offense Under the Labor Law.

Defendant, a corporation engaged in the wholesale and retail grocery trade and operating 180 stores in New York City, was charged on July 28, 1911, with employing Joseph Kennedy, a minor child, as a delivery boy in connection with defendant's mercantile establishment in Brooklyn, in violation of section 162 of the Labor Law, and was ordered to appear before a city magistrate for an investigation of the complaint. Defendant waived examination before the magistrate, and an information was filed in the Court of Special Sessions of the city of New York charging defendant with "the crime of employing a minor child, under the age of fourteen years, in violation of the Labor Law of the State of New York, as a third offense." A trial was had and defendant was convicted on January 22, 1912, and fined $500, as provided by section 1275 of the Penal Law. Defendant paid the fine under protest and took an appeal which was heard in the Second Department of the Appellate Division, where the judgment of the inferior court was unanimously affirmed.

At the trial in the Court of Special Sessions it was proved that the boy was under thirteen years of age at the time of employment. The manager for defendant testified that instructions had been given not to employ boys under the age permitted by law.

Defendant argued before the Appellate Division that the conviction should be reversed on three grounds. The first and most important, which was the only one to which allusion was made. in the decision of the Appellate Division, was that the crime of "third offense" had not been proven. The attorney for the prosecution had placed in evidence certified copies of two previous convictions of defendant for the offense of employing a child under the age of fourteen years, one on July 19, 1909, when a fine of $20 was imposed and a second on January 24, 1910, when a fine of $50 was imposed. As to these, defendant argued:

"The People's Exhibits 2 and 3, at most, show convictions of the appellant for violations of the Labor Law in the employment of children, but neither of them prove that the appellant was ever

convicted of such violations as a second offense, as alleged in the information. As the crime charged as a third offense could not be legally established until the conviction of the same crime as a second offense was shown against the accused, the conviction and sentence in this case are illegal." The court's reply to this contention appears in the decision given below.

Defendant also argued that, although it controlled 180 stores and had, therefore, many managers and other employees, the fact that it had been convicted only twice in a period covering two years was proof that it was not a "persistent violator" of the law and that 66* * * the provisions of the Labor Law as to punishment for violations were intended solely for persistent violators, such as an owner of a single store who continues to employ children in his business after former convictions therefor, and not to a large corporation like the appellant having so many stores and necessarily employing a different manager in each, and with so few convictions claimed against it." On this point, the attorney for the prosecution said: "The statute gives the court no power to inquire as to whether or not the appellant was 'a persistent violator of the law,' and if the proof established two previous convictions the court had no discretion whatsoever as to its judgment in respect to the degree of the offense."

Defendant argued in the third place that even if the conviction was legal, the fine imposed was " inordinate," giving among other reasons the following: "It might be said in addition, that it is really beneficial to the boy, when he is employed outside of school hours, as in the case at bar, for several reasons, viz.: First: It gives the boy a little pocket money for a Sunday enjoyment, and in many cases enables him to assist a widowed mother to sustain the household. Second: The boy is taken off the streets and away from the association of the gangs of young loafers who usually infest the poorer sections of our city. Third: Industry is thus early planted in the boy and a good start is of the greatest benefit to him." In reply to this contention, attorney for the prosecution said: "It is suggested that the Court should take into consideration the hardships of the statute and the fact that the employment was a distinct benefit to both the boy and his mother. Such arguments are, however, properly addressed to the Legislature

and not to the courts, whose sole duty is to administer the law and not to modify it to meet real or imaginary hard situations." The unanimous opinion of the Appellate Division, stated by Justice Woodward, is given in full below.

The information on which the prosecution was based, after setting forth two previous convictions of the defendant, a domestic corporation, for violations of the Labor Law, charges in substance that on the 22d day of July, 1911, in the Borough of Brooklyn, the defendant did wilfully and knowingly - employ, permit and suffer a certain minor child, under the age of fourteen years, to wit: one Joseph Kennedy, to work in and in connection with the defendant's mercantile establishment as a delivery boy.

There is no dispute in the evidence; the defendant was shown to have employed the boy, Joseph Kennedy, under fourteen years of age, on successive Fridays and Saturdays as a delivery boy, paying him seventy-five cents for the Fridays and one dollar for the Saturdays, such employment being within the City of New York, Borough of Brooklyn, and this is unquestionably contrary to the provisions of section 162 of the Labor Law. It is urged, however, that the crime of a third offense was not established. This contention seems to be based upon the theory that while the information charged that the defendant had been convicted of the "crime and misdemeanor of unlawfully employing a child under the age of fourteen years, as a second offense," the evidence merely went to the extent of showing that the defendant had been convicted of two prior offenses. We are of opinion that the statute does not require such proof; that it is sufficient to show that the defendant has been twice previously convicted of some violation of "The provisions of article eleven of the labor law, relating to mercantile establishments, and the employment of women and children therein." There are several things which are required in the performance of duties and obligations under this subdivision, and a violation of any of these or a failure to comply with the conditions prescribed, is declared to be a misdemeanor, and upon conviction, the defendant is to be " punished for a first offense by a fine of not less than twenty nor more than fifty dollars; for a second offense by a fine of not less than fifty nor more than two hundred and fifty dollars, or by imprisonment for not more than thirty days or by both such fine and imprisonment; for a third offense, by a fine of not less than two hundred and fifty dollars, or by imprisonment for not more than sixty days, or by both such fine and imprisonment." (1275 Penal Law, as amended by chapter 749, Laws of 1911). The things required and the things forbidden are set forth in sections 161 and 162 of the Labor Law, and the violation of any one of these, or the failure to comply therewith, is made a misdemeanor, and the punishment of such misdemeanor depends upon whether the defendant has been previously convicted of offenses under the provisions of the Labor Law above cited. It does not require that he shall have been convicted of the same offense, but upon the violation or failure to comply with any of the provisions he is guilty of a misdemeanor, and the punishment is meted out on the basis of the number of violations of the act of which the defendant has been convicted. It does not pretend to change the grade of the crime;

it is declared to be a misdemeanor, but the punishment is made to depend upon whether the defendant has merely transgressed in a single instance, or in more. People v. James Butler, 154 App. Div. 311.

Assignment of Wages.

*

In the Bulletin for March, 1912, there was reported an unanimous decision of the Second Appellate Department sustaining a judgment in favor of plaintiff in a case involving the interpretation of section 42 of the Personal Property Law. This section requires one making a loan to employees on account of wages due or to be earned to give notice to the employer within three days" after the execution of such assignment or notes and the making of such loan." In this case, the loan was made in February but assignment of the wages was not made until April.† The rate of interest charged was excessive, the net amount received by the borrower being $34.85 and the amount sued for $60.50. The Court of Appeals reversed the decision and held that notice should have been given the employer within three days after loan was made. Thompson v. Erie R. R. Co., 207 N. Y.

171.

Employers' Liability.

UNDER SECTION 81 OF LABOR LAW (GUARDING OF MACHINERY)

Slippery Floor-Unguarded Cogs.- Plaintiff, in employ of defendant, was injured by falling upon the moving cogs of a machine, which was not guarded as required by section 81 of the Labor Law. The fall was caused by the oily and slippery conditions of the floor.

Notice was served upon defendant under the Employers' Liability Act of 1902 and also at common law. The case was tried at common law. Judgment was rendered for plaintiff in the Supreme Court. The Second Appellate Department (136 App. Div. 315) reversed the decision, holding that, at common law, plaintiff assumed the risk of the slippery floor. On a second trial in the Supreme Court, in which liability at common law and also under the Employers' Liability Act of 1902 was claimed, the complaint was dismissed. On appeal, the Second Appellate

• Page 42.

An amendment to section 42 made in 1911 declares the day of making the loan to be the day when the money is delivered to the borrower within the meaning of the act.

Reported in the June, 1910, Bulletin, p. 231.

4

Department (144 App. Div. 213) affirmed the dismissal, whereupon plaintiff took the case to the Court of Appeals. The latter court unanimously reversed the decision in favor of defendant and granted a new trial. All of the judges, save two, held that the notice served under the Employers' Liability Act was defective on the ground that:

A notice of the place of an injury which it is claimed has occurred by reason of slipping upon a greasy floor and by falling upon the cogs of the revolving wheels of a machine not properly guarded should be sufficiently accurate to enable the employer to identify the machine. A notice stating the wrong machine, even if it is located in the same factory as the right one, is not only misleading but it fails to give the employer any correct information of the employee's claim to enable him from the notice to investigate the same.

Two judges held that the notice was properly served, saying in part:

It subsequently appeared by a bill of particulars and by the evidence that the machine by which he was injured was not the one at which he worked. He was, at the time, going along a passage-way between machines in the same room in which he worked, when he slipped and, in an effort to save himself, thrust his hand out, and into, the ungarded gearing of a machine. The plaintiff incorrectly described the particular machine, from which he received his injury; but that could not have misled the defendant in his investigation of the occurrence. It was the defective condition of the passageway, which had been allowed to become slippery from grease and oil, in connection with the unguarded gearing, that occasioned the accident and the defendant's attention and inquiry were sufficiently excited and directed by the notice he received.

All concurred, however, in holding defendant liable at common law, the majority saying:

The action can be maintained as one at common law, and the plaintiff relies largely upon the mandatory provisions of the Labor Law (Consolidated Laws, chapter 31). Section 81 of the Labor Law is as follows: "All cogs, gearing, shafting and machinery, of

every description shall be properly guarded."

The defendant claims that the cogs, gearing, shafting and machinery so used by it were properly guarded, but upon all the facts and circumstances relating to its exposure, as disclosed by the record, that a question of fact to be determined by the jury. (Scott v. International Paper Co., 204 N. Y. 49.)

The risks occasioned by the failure of the employer to supply statutory safeguards were not, as a matter of law, assumed by the employee, though he had full knowledge of such failure. (Fitzwater v. Warren, 206 N. Y. 355.)