(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 His compensation is at the rate of $600 per year, and he is paid

measures.

$50 monthly.

(F) A levelman, who assists civil engineers in work similar to that of a 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.

(I) 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 in 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.

(0) 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 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 herein before 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 different provision is made) to " 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." 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 blueprinter 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 66 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 herein before 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 shall 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 SCOTT, JJ., concurred; DOWLING, J., dis

sented

VI. AUTHORIZED USE OF UNION LABEL

Under section 15 of the Labor Law the authorized use of the union label permits the owner of the label, or anyone else, to recommend the purchase of the goods upon which it is placed, in preference to other goods not so labeled. This authorized use is to enable purchasers to determine whether the goods exposed for sale are made by union labor. Neither is it unlawful that such label contain a provision that the label shall not be used except where a certain wage rate obtains, nor upon machine made goods. While this is true, yet if its use is enforced in such manner as to cause injury or threatened injury, tends to create a monopoly, causes injury to the public, is useless or unfair, it may constitute a "secondary" boycott and will be held to be an unlawful interference with commerce; and in such case persons so using it may be deemed to be engaged in a conspiracy, for which they can be held to an account in equity.

SEUBERT V. REIFF 98 Misc. 402 (Jan., 1917), abstract.

Plaintiff sought an injunction and damages against individuals and unincorporated associations seeking to compel the use of the union label on cigars manufactured by it. It was alleged that efforts were made to prevent customers from selling its cigars, by means of picketing, distribution of cards calling such customers unfair, by disciplining union men dealing with them, or who were employed by them, or who sold the same, and by threatening customers with loss of trade. The label simply certified that the cigars in the box on which it was placed were produced by first class workmen who were members of the union, and contained certain limitations upon its use. The employer alleged that a combination to compel its use amounted to an unlawful combination in restraint of trade, and therefore constituted a conspiracy. Disposing of the case the court said:

"I cannot find any sufficient basis for such claim. The authority to adopt such a label is given to the unions by statute. The very purpose of this authorized use is to enable purchasers to determine whether or not goods exposed for sale are made by union labor. The limitation that it shall not be used except where certain rates of wages prevail is clearly not unlawful. Neither is the provision that it shall not be used upon machine made goods.

The usefulness of the label depends upon its being to some extent a warranty of quality, and to this end there is nothing improper in the provision that it shall not be allowed upon cigars selling for less than twenty dollars a thousand. It in no way prohibits the manufacturer from making and selling such cigars. It simply prohibits him from attaching the label thereto.

"The provision prohibiting a manufacturer from selling to another upon the unfair list most nearly supports the plaintiff's claim.

"Whatever might be said if this provision, however, had the existence of certain facts been shown, in the case at bar is not important.

"A manufacturer may not use the label who sells cigars to a manufacturer who is put on the unfair list. So far as I can discover no reference is made to an unfair list either in the constitution of the International or of the local union. The word only appears in that of the Trades Assembly. Nor is there any proof that the International Union has or ever had such a list. Before it can be said that conditions attached to the union label limit trade, such evidence must be given.

"The question remains as to whether the defendants or any of them conspired to effect any purpose by unlawful means.

"First as to the strike or strikes. Even if it be claimed, which I do not concede, that a strike may not be declared by one union and approved and aided by others, without some interest, the use of the union label by manufacturers is a matter in which all are interested.

"So picketing in aid of the strike is not in itself illegal. It only becomes so if accompanied by force, violence, trespass or other improper act."