thing for the court to do is to enforce the plain provisions of the statute, and, therefore, it is clear that this building is within the provision of the statute.

The next and more serious question is the construction of the provision referring to a factory building in which "more than two hundred people are regularly employed above the seventh floor." The contention of the appellant is that this means "employees" in the sense in which that term is defined in section 2 of the Labor Law as above quoted, that is to say, mechanics, workingmen or laborers, and, accordingly, all employers and nonfactory employees, such as accountants, clerks, stenographers and the like should be excluded in making the count of persons to determine the necessity for installing a sprinkler system. If the provision read, “A building in which there are more than two hundred regular employees," it is obvious that employers would not be included and also, as it has been decided that the term "employee" as used in the law does not include a stenographer, accountant, typist, bookkeeper or clerk (People v. Interborough Rapid Transit Co., 169 App. Div. 32), that no office employees and no persons employed in nonfactory quarters would be included, but that the count would be exclusively of workingmen, mechanics and laborers. But the statute does not so read and the Legislature has with evident intention omitted to make the number of "employees" the measure of the requirement to install a sprinkler system and has made the measure instead the number of "people regularly employed."

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*

It is unnecessary to decide whether employers are to be included in the count, for there were more than 200 persons employed or engaged in work above the seventh floor excluding employers. The natural and customary interpretation of the words "people employed," apart from the context, would be people hired and paid and directed by others commonly known as employers, and would thus exclude employers. But considering the broad purpose of the act, enacted to safeguard human life, and the omission in that section of the technical term employees," it may well be, as argued by the respondent, that the expression "people employed" was

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used in the sense of "persons engaged," or occupants, and this notwithstanding the fact that in various sections of the Labor Law the term occupants is more than once used in a technical sense as distinguished from “employers." However this may be, it seems reasonably clear that all persons who work for hire are properly included in the phrase "people employed." Where the statute in so many sections carefully uses the word "employees " when it is obviously intended to refer only to workingmen, mechanics and laborers and fails to in this case, I see no reason for departing from the natural and customary meaning of the words and limiting it so as not to take into account all who had hired and regularly work for hire, simply because all persons who are hired are in a general sense employees and the term employees" as defined for specific purposes in certain sections refers only to workingmen, mechanics and laborers. Indeed there is one section of the law in which the word "employees" is specifically used where the plain intent of the law is to include all persons engaged in work. referring to size of rooms. It reads: No more employees or permitted to work in a room in a factory

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Take section 85, shall be required than will allow to

each of such employees, not less than two hundred and fifty cubic feet of air space." There the meaning of the word "employees " as first used obviously means "persons," for the purpose of the provision is to provide a certain amount of cubic feet of air space for the workingmen, laborers and mechanics. Persons other than employees would use up the air space just as effectively as workingmen and it would be impossible to obtain the requisite air space for employees, technically referred to, if a large number of clerks, stenographers and accountants were permitted to crowd into the room. What we are required to do is to interpret this provision liberally and so as to carry out the plain intent of the statute. While it may be generally true that the act was passed in the interest of workingmen and many of the provisions specifically refer to them, the intent of this "sprinkler section" was to protect human life from fire perils. The number of persons working on a given floor of a building or working above the seventh floor obviously has a direct relation to such a fire peril as panic. It, therefore, seems reasonable to conclude that the Legislature meant to make the measure of this particular requirement for sprinklers the presence of more than 200 people who are regularly employed above the seventh floor, giving the usual and ordinary interpretation to the words people ployed." As there were 254 persons employed and engaged at work above the seventh floor of this building, exclusive of the 100 employers, we are of the opinion that the building came within the requirements of section 83-b of the Labor Law, governing the installation of automatic sprinklers.

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It is further contended that the word "regularly" if given any significance requires that more than a single inspection shall be made, and that the inspection made on an isolated occasion is not enough to make out a case of regular employment; that the statute contemplated a series of inspections which should show the average number of persons employed over a period of six months or a year or in any event a reasonable period. Of course the mere finding of more than 200 persons at work in a building on a given date would not bring the building within the law if it appeared that the occasion was unusual and that ordinarily the number was under 200. Considering the difficulties in the way of enforcing these statutes and the ample opportunity afforded the owner to bring out the true state of facts, and giving the usual presumption of good faith and regularity to the acts of public officials, it seems to me that a prima facie case is made out for the order when it is shown that on an inspection there were more than 200 persons employed, leaving it to the owner to show that the occasion was spasmodic or unusual and that as a usual thing less than 200 were employed.

Finally, it is claimed that section 83-b of the Labor Law is unconstitutional if held applicable to such a building as the Cockcroft Building, occupied mainly by manufacturing jewelers who do not work with or upon inflammable materials and whose office present no fire risk whatever, and because there was no testimony and no data before the Factory Investigating Commission with respect to the type of building here involved. We have already held the act constitutional as applicable to such a building as this. (Cockcroft v. Mitchell, 187 App. Div. 189.) It is claimed, however, that the case is radically different, as the question is here whether the building contained such inflammable or combustible material as to render reasonable the require

ment for the installation of sprinklers. I do not think that the question is essentially different although there is more ground for holding the sprinkler requirement to be unreasonable than existed in the case of exits. As we held in the other case, the question of panic is one of the great perils to be guarded against. The fact that a building would not readily catch on fire or burn does not meet the danger of panic, resulting from the presence of a very hot and apparently dangerous fire in neighboring buildings, or the penetration of smoke to the different floors either from without the building or from a small fire that might start in some of the offices. The Legislature evidently conceived that a sense of security would be given employees if the building were adequately equipped and protected as required by the law and that this would tend to decrease the danger from panic. However this may be, we think the question is one for the Legislature, and also that, as to whether the matter was thoroughly investigated by the Factory Investigating Commission or not prior to the enactment of the law, it is to be presumed that the Legislature acted upon adequate information and due consideration. We are, therefore, of the opinion that the order with respect to automatic sprinklers should be affirmed. It follows that the order appealed from in so far as it dismisses the writ of certiorari to review the orders for the installation of a fire signal system and for fire drills should be reversed and the matter remitted to the board of appeals for a rehearing before the full board, and in so far as it sustains the order for the installation of an automatic sprinkler system it should be affirmed, without costs.

J. LIGHTING OF HALLWAYS-WHEN HOLIDAY IS "WORK DAY" REQUIRING

WAX V. LANGDON Co., 88 Misc. 5 (Dec., 1914), abstract.

A statutory holiday does not stand on the same basis as Sunday so far as doing work thereon. Hence, the owner of a tenant factory is liable for the failure to light a stairway on January 1, where an accident occurs to an employee of a tenant whose factory operates on said day.

K. AUTOMATIC SPRINKLER SYSTEM FIREPROOF WOODEN TRIM AS EXEMPTING FROM

That the use of fireproofed wooden trim does not exempt a building from the requirement of an automatic sprinkler system, see People ex rel. Cockcroft v. Miller, p. 85, ante.

XI. MINOR ILLEGALLY EMPLOYED

A. EXCLUSIVENESS OF REMEDY UNDER COMPENSATION LAW In ruling on this question the Appellate Division, Second Department, has ruled as follows:

(1) WOLFF V. FULTON BAG & COTTON MILLS, 185 App. Div. 436 (Dec. 6, 1918), in part.

"Violation of the statute [Labor Law] is evidence of negligence in an action such as this [action under the Employers' Liability Law], based upon the allegation that the defendant failed in the duty it owed to the infant plaintiff while she was in the factory whether her employment was legal or illegal. The object of these statutes and the policy of the State with reference to the employment of minors have been repeatedly stated. We think that in enacting the Workmen's Compensation Law with reference to the rights and remedies of employers and employees, the Legislature referred to legal employment. To construe the law as permitting an employer who has employed children illegally in work expressly forbidden by law, to insist that they are deprived of their common-law rights and must look to the Workmen's Compensation Law for relief, would be to nullify the provisions of the Labor Law and to disregard the public policy of the State." However, a contrary conclusion has been reached by the Third Department on this question:

(2) BOYLE v. CHENEY PIANO Co., 193 App. Div. 408 (Sept. 8, 1920),

abstract.

The Appellate Division, Third Department, has held that the remedy of an injured minor employee who was illegally and wrongfully employed, is under the workmen's compensation law, exclusively.

B. AGE OF MINOR AS QUESTION FOR JURY

WIEMERS V. AMERICAN FIDELITY Co., 181 App. Div. 774 (Feb. 1, 1918), abstract.

The Appellate Division, First Department, has held that where the age of an injured minor alleged to have been employed in violation of the Labor Law is in dispute, it appearing that the father testified as to the date of birth of the plaintiff but could not give the date of birth of any other one of his six children, the question as to whether the minor was within the prohibited age is for the determination of the jury.

C. CONTRIBUTORY NEGLIGENCE AS DEFEATING RECOVERY A child, 13 years and 10 months of age was injured while operating an elevator. The Appellate Division, First Department, affirmed a judgment on a trial before a jury in favor of the defendant, holding that the plaintiff must prove freedom from coatributory negligence. Two justices dissented, being of the opinion that the statutory liability was absolute and could not be defeated by a plea of contributory negligence. See Karpeles v. Heine, 180 App. Div. 375 (Dec. 17, 1917).

However, on appeal, the Court of Appeals reversed the decision of the Appellate Division, in the following opinion, concurred in unanimously:

KARPELES V. HEINE, 227 N. Y. 74 (July 15, 1919).

CHASE, J.: The plaintiff at the times herein mentioned was a boy about two months less than fourteen years of age, living with his father and mother on the sixth floor of a tenement house, and is described as "very healthy and very smart." The house contained twenty-four apartments and the owners maintained therein an elevator for the use of the tenants. They also employed a superintendent who had authority to employ a person to run the elevator for them. The plaintiff frequently rode on the elevator, and at times sought to manipulate the crank constituting the controller thereof. On the night before the day of the accident the boy employed by the superintendent, and in charge of the elevator, notified him that he was going to leave, but his services were continued until noon of the day of the accident.

About eleven o'clock on that day there was about and near the elevator, which was standing with open door at the ground floor of the building, the superintendent, the boy who was about to leave the employ of the defendants, a boy who had called to make application for employment to run the elevator, and the plaintiff. While they were so in the hallway of the ground floor, a man who had for a long time prior thereto been employed by the tenants in the building as a window cleaner came in and entered the elevator. The plaintiff ran into the elevator and said that he would take the man up to the floor to which he was going, but the man refused to go with him. The superintendent then, referring to the plaintiff and his running the elevator, said that it was all right, and the jury could have found that he had that morning expressly told the plaintiff to take charge of the elevator. What occurred thereafter is shown by the statements of the appellant's counsel made at the opening of the trial as follows:

"He took the window cleaner up to the third floor and evidently must have come back to the second floor and gotten out of the elevator for some purpose and then when he went back into the elevator, the elevator having left in the meantime, he fell down the elevator shaft two flights to the basement." The window cleaner testified that the plaintiff took him to the third floor and opened the door and that he (the window cleaner) immediately left the elevator and entered an apartment and did not know of the accident until