on part of employees of municipal department of water supply, Grady v. City of New York, 182 N. Y. 18 (May 30, 1905) and, on part of employees of state hospital, Opinion of Attorney-General, November 20, 1914. The commissioner of labor is not empowered to issue permits for emergency work: Opinion of Attorney-General, June 8, 1911.

The section does not apply to work done out of the state for a New York contractor Ewen v. Thompson-Starrett Co., 208 N. Y. 245 (1913).

A city employee may waive his right to the prevailing rate of wages: Ryan v. City of New York, 177 N. Y. 271; Byrnes v. City of New York, 150 App. Div. 338. A general contractor is not liable for violation of the section by a subcontractor when evidence does not show that violation was required or permitted by the general contractor or even occurred with his knowledge or consent: McFarlane v. Mosier & Summers, 157 App. Div. 844.

§ 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 governor. Any citizen of this state may maintain proceedings for the suspension or removal of such officer, agent or employee or may maintain an action for the purpose of securing the cancellation or avoidance of any contract which by its terms or manner of performance violates this chapter or for the purpose of preventing any officer, agent or employee of such municipal corporation from paying or authorizing the payment of any public money for work done thereupon.

See notes to § 3, ante; § 21, post; Penal Law, § 1271, subd. 1, p. 170, post.

5. Hours of labor in brickyards.- Ten hours, exclusive of the necessary time for meals, shall constitute a legal day's work in the making of brick in brickyards owned or operated by corporations. No corporation owning or operating such brickyard shall require employees to work more than ten hours in any one day, or to commence work before seven o'clock in the morning. But overwork and work prior to seven o'clock in the morning for extra compensation may be performed by agreement between employer and employee.

Violation a misdemeanor: Penal Law, § 1271, subd. 3, p. 170, post.

§ 6. Hours of labor on street surface and elevated railroads.- Ten consecutive hours' labor, including one-half hour for dinner, shall constitute a day's labor in the operation of all street surface and elevated railroads, of whatever motive power, owned or operated by corporations in this state, whose main line of travel or whose routes lie principally within the corporate limits of cities of the first and second class. No employee of any such corporation shall be permitted or allowed to work more than ten consecutive hours, including one-half hour for dinner, in any one day of twenty-four hours.

In cases of accident or unavoidable delay, extra labor may be performed for extra compensation.

Violation a misdemeanor: Penal Law, § 1271, subd. 2; § 1275, pp. 170, 171, post. Under former law, violation was not a crime: People v. Phyfe, 10 Crim. 246.

§ 7. Regulation of hours of labor on steam surface and other railroads. - Ten hours' labor, performed within twelve consecutive hours, shall con

stitute a legal day's labor in the operation of steam surface, electric, subway and elevated railroads operated within this state, except where the mileage system of running trains is in operation. No person or corporation operating any such railroad of thirty miles in length, or over, in whole or in part within this state, shall permit or require any conductor, engineer, fireman, trainman, motorman or assistant motorman, engaged in or connected with the movement of any train on any such railroad, to be or remain on duty for a longer period than sixteen consecutive hours, and whenever any such conductor, engineer, fireman, trainman, motorman or assistant motorman shall have been continuously on duty for sixteen hours he shall be relieved and not required or permitted again to go on duty until he has had at least ten consecutive hours off duty, and no such conductor, engineer, fireman, trainman, motorman or assistant motorman who has been on duty sixteen hours in the aggregate in any twenty-four hour period shall be required or permitted to continue or again go on duty without having had at least eight consecutive hours off duty, except when by casualty occurring after he has started on his trip, and except when by accident or unexpected delay of trains scheduled to make connection with the train on which he is serving, he is prevented from reaching his terminal. The commissioner of labor shall appoint a sufficient number of inspectors to enforce the provisions of this section. [As am'd by L. 1913, ch. 462.]

Violation a misdemeanor: Penal Law, § 1271, subd. 4, p. 170, post; also evidence of negligence in action for personal injuries sustained by employee, Pelin v. N. Y. C. & H. R. R. R. Co., 102 App. Div. 71 (1905).

§ 8. Regulation of hours of labor of block system telegraph and telephone operators and signalmen on surface, subway and elevated railroads.-The provisions of section seven of this chapter shall not be applicable to employees mentioned herein. It shall be unlawful for any corporation or receiver, operating a line of railroad, either surface, subway or elevated, in whole or in part in the state of New York, or any officer, agent or representative of such corporation or receiver to require or permit any telegraph or telephone operator who spaces trains by the use of the telegraph or telephone under what is known and termed the "block system" (defined as follows): Reporting trains to another office or offices or to a train dispatcher operating one or more trains under signals, and telegraph or telephone levermen who manipulate interlocking machines in railroad yards or on main tracks out on the lines or train dispatchers in its service whose duties substantially, as hereinbefore set forth, pertain to the movement of cars, engines or trains on its railroad by the use of the telegraph or telephone in dispatching or reporting trains or receiving or transmitting train orders as interpreted in this section, to be on duty for more than eight hours in a day of twenty-four hours, and it is hereby declared that eight hours shall constitute a day of employment for all laborers or employees engaged in the kind of labor aforesaid; except in cases of extraordinary emergency caused by accident, fire, flood or danger to life or property, and for each hour of labor so performed in any one day in excess of such eight hours, by any such employee, he shall be paid in addition at least one-eighth of his daily compensation. Any person who is employed as signalman, towerman, gateman, telegraph or telephone operator in a railroad signal tower or public railroad station to receive or transmit a telegraphic or tele

phonic message or train order for the movement of trains and who works eight hours or more in any twenty-four each and every day continuously, and all gatemen so employed must have at least two days of twenty-four hours each in every calendar month for rest with the regular compensation; subject to the foregoing provisions relating to extra service in cases of emergency. Any person or persons, company or corporation, who shall violate any of the provisions of this section, shall, on conviction, be fined in the sum of not less than one hundred dollars, and such fine shall be recovered by an action in the name of the state of New York, for the use of the state, which shall sue for it against such person, corporation or association violating this section, said suit to be instituted in any court in this state having appropriate jurisdiction. Such fine, when recovered as aforesaid, shall be paid without any deduction whatever, one-half thereof to the informer, and the balance thereof to be paid into the free school fund of the state of New York. The provisions of this section shall not apply to any part of a railroad where not more than eight regular passenger trains in twenty-four hours pass each way; provided, moreover, that where twenty freight trains pass each way generally in each twenty-four hours then the provisions of this section shall apply, notwithstanding that there may pass a less number of passenger trains than hereinbefore set forth, namely eight. [As am'd by L. 1913, ch. 466.]

The section is unconstitutional as concerns interstate commerce because it conflicts with the U. S. law on the same subject. The U. S. Supreme Court has so decided relative to the eight-hour provision: Erie R. R. Co., v. New York, 233 U. S. 671. The Appellate Division, citing the U. S. Supreme Court case, has so decided relative to the days of rest provision: People v. N. Y. C. & H. R. R. R. Co., 163 App. Div. 79.

Violation of the section subjects the offender to a civil action for recovery of the penalty and also to criminal prosecution under § 1275, Penal Law.

The eight-hour clause does not apply to conductors and engineers temporarily acting as telephone operators in the movement of trains: Opinion of AttorneyGeneral, March 26, 1912; nor does it apply to towermen who control the movement of trains by means of levers: Opinion of Attorney-General, August 14, 1913.

§ 8-a. One day of rest in seven.- (1) Every employer of labor engaged in carrying on any factory or mercantile establishment in this state shall allow every person, except those specified in subdivision two, employed in such factory or mercantile establishment at least twenty-four consecutive hours of rest in every seven consecutive days. No employer shall operate any such factory or mercantile establishment on Sunday unless he shall have complied with subdivision three. Provided, however, that this section shall not authorize any work on Sunday not now or hereafter authorized by law. 2. This section shall not apply to

(a) Janitors;

(b) Watchmen;

(c) Employees whose duties include not more than three hours' work on Sunday in (1) setting sponges in bakeries; (2) caring for live animals; (3) maintaining fires; (4) necessary repairs to boilers or machinery; (d) Superintendents or foremen in charge.

(e) Employees, if the commissioner of labor in his discretion approves, engaged in the work of any industrial or manufacturing process necessarily

continuous, in which no employee is permitted to work more than eight hours in any calendar day. [Par. (e) added by L. 1914, ch. 396.]

A " 'process necessarily continuous is one conducted twenty-four hours every day. The commissioner of labor can grant exemption to some employees and refuse it to others: Opinion of Attorney-General, April 27, 1914.

(f) Employees in dairies, creameries, milk condensaries, milk powder factories, milk sugar factories, milk shipping stations, butter and cheese factories, ice cream manufacturing plants and milk bottling plants, where not more than seven persons are employed. [Par. (f) added by L. 1914, ch. 388.]

3. 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. The employer shall promptly file with the said commissioner a copy of every change in such schedule. No employee shall be required or allowed to work on the day of rest so designated for him.

4. Every employer shall keep a time-book showing the names and addresses of all employees and the hours worked by each of them in each day, and such time-book shall be open to inspection by the commissioner of labor. 5. The industrial board at any time when the preservation of property, life or health requires, may except specific cases for specified periods from the provisions of this act by written orders which shall be recorded as public records. [Section 8-a added by L. 1913, ch. 740.]

See section 2 and notes thereon as to the meaning of the terms employee," "employer," "factory" and "mercantile establishment."

Rulings on the section are given in opinions of the Attorney-General of September 29, October 6 and 15, November 15 and December 6, 1913 (Report of Commissioner of Labor, 1913, pp. *275-282) and opinion of May 5, 1914; it applies to gas and electric plants whether owned privately or municipally, but does not apply to water pumping stations; it does not apply to pharmacies or drug stores, to telegraph and telephone companies (except employees working in shops), to railroads or street railways (except employees working in shops or on factory yard engines), to restaurants, lunch rooms or hotel dining-rooms, to cold storage plants (except ice-plant boiler and engine room employees), to farm work, or to chauffeurs. The constitutionality of the section has been sustained, except as to paragraph e, by the Court of Appeals in People v. Klinck Packing Co., 214 N. Y. 121.

§ 9. Payment of wages by receivers. Upon the appointment of a receiver of a partnership or of a corporation organized under the laws of this state and doing business therein, other than a moneyed corporation, the wages of the employees of such partnership or corporation shall be preferred to every other debt or claim.

See also Debtor and Creditor Law, ch. 12 of the Consolidated Laws, §§ 22, 23, as amended and renumbered by L. 1914, ch. 360, and Lien Law, § 13.

Term employees includes operatives and laborers: Palmer v. Van Santvoord, 153 N. Y. 612; traveling salesmen: Matter of Fitzgerald, 21 Misc. 226; bookkeepers employed at salary of $100 a month: People v. Beveridge Brewing Co., 91 Hun 313, and Matter of Luxton & Black Co., 35 App. Div. 243, etc.

Term" wages does not cover amounts credited to employees under a system of profit sharing: Dolge v. Dolge, 70 App. Div. 517.

10. Cash payment of wages.- Every manufacturing, mining, quarrying, mercantile, railroad, street railway, canal, steamboat, telegraph and telephone company, every express company, every corporation engaged in har

a sub

vesting and storing ice, and every water company, not municipal, and every person, firm or corporation, engaged in or upon any public work for the state or municipal corporation thereof, either as a contractor or contractor therewith, shall pay to each employee engaged in his, their or its business the wages earned by such employee in cash. No such company, person, firm or corporation shall hereafter pay such employees in scrip, commonly known as store money-orders. No person, firm or corporation engaged in carrying on public work under contract with the state or with any municipal corporation of the state, either as a contractor or subcontractor therewith, shall, directly or indirectly, conduct or carry on what is commonly known as a company store, if there shall, at the time, be any store selling supplies within two miles of the place where such contract is being executed, Any person, firm or corporation violating the provisions of this section shall be guilty of a misdemeanor.

Penalty See § 12, post, and Penal Law, § 1272, p. 170, post.

:

On subject of constitutionality, see Knoxville Iron Co. v. Harbison, 183 U. S. 13, in which the United States Supreme Court sustained the Tennessee anti-truck law. Payment by check is not a compliance with the section: Opinion of AttorneyGeneral in his report for 1899, p. 335.

The section prohibits deductions for rent or other charges (Letter of AttorneyGeneral, December 31, 1914).

§ 11. When wages are to be paid.- Every corporation or joint-stock association, or person carrying on the business thereof by lease or otherwise, shall pay weekly to each employee the wages earned by him to a day not more than six days prior to the date of such payment.

But every person or corporation operating a steam surface railroad shall, on or before the first day of each month, pay the employees thereof the wages earned by them during the first half of the preceding month ending with the fifteenth day thereof, and on or before the fifteenth day of each month pay the employees thereof the wages earned by them during the last half of the preceding calendar month.

Penalty See § 12, post, and Penal Law, § 1272, p. 170, post.

The semi-monthly pay law in the second paragraph of this section is constitutional as a valid exercise of the police power and of the reserved control of the state over corporate charters and as not directly burdensome on interstate commerce: Erie R. R. Co. v. Williams, 233 U. S. 685; N. Y. C. R. R. Co. v. Williams, 199 N. Y. 108.

Any corporation operating a steam surface railroad and also engaged in mining or any other business than the operation of such surface railroad must pay its employees not engaged in operating such road in accordance with the general provisions of this section: Opinion of Attorney-General, June 4, 1906. Does not apply to a municipal corporation: People ex rel. Van Valkenburg v. Myers, 33 N. Y. St. Rep. 18; People v. City of Buffalo, 57 Hun 577.

The section applies to foreign corporations doing business in this state. Clerks, stenographers, salesmen and draftsmen are employees" receiving wages": Opinion of Attorney-General, December 12, 1912: applies to a corporation which has entered into a partnership with individuals: Opinion of Attorney-General, April 16, 1913.

A contract that employees shall forfeit one week's wages in case they leave employer without stipulated notice is illegal: Opinion of Attorney-General, March 8, 1913.

§ 12. Penalty for violation of preceding section.- If a corporation or jointstock association, its lessee or other person carrying on the business thereof,