#### William D. O’Connor, an Infant, by Hanora O’Connor, His Guardian ad Litem, Respondent, *v.*Richard Webber, Jr., and William Webber, Copartners Doing Business under the Firm Name and Style of Richard Webber, Appellants.

Second Department,

May 29, 1914.

Master and servant—negligence — Labor Law — sections 81 and 93 apply only to manufacturers — injury to employee of retail butcher by meat chopping machine — employment of infant — failure to guard machine.

Section 81 of the Labor Law, relating to the guarding of machinery, and section 93 of said act, relating to the employment of minors, apply only to the employer of labor in a factory and have no application to employers engaged in purely mercantile and other non-manufacturing enterprises.

The sections of the Labor Law aforesaid have no application to a retail butcher, who uses in his business a machine for chopping meat, and there can be no recovery under said statute, although the employee injured by such machine had not attained the statutory age for employment in a factory, and although the chopping mechanism of the machine was not guarded.

Appeal by the defendants, Richard Webber, Jr., and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 15th day of October, 1913, upon the verdict of a jury for $4,000, and also from an order entered in said clerk’s office on the same day denying defendants’ motion for a new trial made upon the minutes.

*Frank V. Johnson [Amos H. Stephens*with him on the brief], for the appellants.

*Sydney A. Syme,*for the respondent.

Stapleton, J.:

The defendants appeal from a judgment entered upon a verdict in favor of the plaintiff in the sum of $4,000, and from an order denying a motion to set aside the verdict and- for a new trial.

The action was brought in behalf of the infant plaintiff to recover damages for the amputation of a portion of his right *176hand, which was crushed in a chopping machine maintained and operated by the defendants in their retail butcher shop and general store in the city of Mount Vernon.*

At the time of the casualty, on June 4,1913, the plaintiff was under fifteen years of age, and had been in defendants’ service for about three weeks. Part of his duties was to take meat from a conveying cable and run it through a chopping machine operated by electricity. He did this about ten times a day. As the different customers ordered chopped meat, the butchers would call him and he would go and chop it. The meat was fed into the machine through a funnel that was about four inches in height, four or five inches in diameter at the top, and about two inches in diameter at the bottom. The plaintiff’s method was to feed the meat into the funnel with his left hand, and then to push it down into the machine with a stick that he held in his right. This stick, after being used a little while, would become greasy. After the meat left the machine the first time, it was put through a second time to make it of the proper fineness.

At the time of the casualty the plaintiff was in the act of chopping a pound and a half of meat for which he had received an order. He thus describes what occurred: “The butcher sent me to the meat chopping machine to grind some meat, and I went there and was putting it through the second time when the stick hit the cogwheel and my hand slipped down into the machine.” By “ cogwheel ” he meant the revolving worm. According to plaintiff’s version, when the stick hit the worm it pulled away from him and his hand went down into the machine.

The case was submitted to the jury upon the theory that defendants’ negligence could be established by proof of failure on their part to discharge statutory duties imposed upon an employer of labor. There are two sections of the Labor Law (Laws of 1909, chap. 36, constituting Consol. Laws, chap. 31, as amd. by Laws of 1909, chap. 299, and Laws of 1910, chaps. 106, 107)† which the trial court held the jury should consider *177upon the issue of negligence. One is section 81, which, so far as applicable, reads: “Protection of employees operating machinery. The owner or person in charge of a factory where machinery is used, shall provide, in the discretion of the Commissioner of Labor, belt shifters or other mechanical contrivances for the purpose of throwing on or off belts on pulleys. Whenever practicable, all machinery shall be provided with loose pulleys. All vats, pans, saws, planers, cogs, gearing, belting, shafting, set-screws and machinery, of every description, shall be properly guarded.” The other is section 93, which, so far as applicable, reads: “Prohibited employment of women and children. Mo child under the age of sixteen years shall be employed or permitted to work in operating or assisting in operating any of the following machines: Circular or band saws, woodshapers, wood-jointers, planers, sandpaper or wood polishing machinery; picker machines or machines used in picking wool, cotton, hair or any upholstering material; paper lace machines; burnishing machines in any tannery or leather manufactory; job or cylinder printing presses having motive power other than foot; woodturning or boring machinery; drill presses; metal or paper cutting machines; corner staying machines in paper box factories; stamping machines used in sheet metal and tinware manufacturing or in washer and nut factories; machines used in making corrugating rolls; steam boilers; dough brakes or cracker machinery of any description; wire or iron straightening machinery; rolling mill machinery, power punches or shears; washing, grinding or mixing machinery, calendar rolls in rubber manufacturing; or laundering machinery.”

The duties imposed by the written law quoted are not imposed upon every employer of labor. It is only an employer of labor in a factory who is subject to the mandate of the provisions upon which the plaintiff rests. This conclusion is manifest from the history of the legislation (see notes relating to these sections in Birdseye’s Gumming & Gilbert’s Consol. Laws of Mew York), and from an examination of the entire Labor Law, which, in a separate article, imposes upon employers engaged in manufacture duties which are distinct from *178those which, by its other articles, are imposed upon employers engaged in purely mercantile and other non-manufacturing enterprises. The quoted provisions are incorporated in the article of the present Labor Law relating to factories. The proposition has the support of authority. *(Shannahan*v. *Empire Engineering Corp.,*204 N. Y. 543. See *Poole*v. *American Linseed Co.,*119 App. Div. 136.)

A fundamental inquiry, therefore, is: Was the defendants’ place of business a factory within the meaning of that word as used in the Labor Law ? The trial court left that question to the jury to be determined as one of fact. Of course it is a question of law. If the jury reached the correct result no. complaint may be made. The question occurs, was the statute properly construed and legally applied ?

The Labor Law, in section 2,* amplifies, so far as here applicable, the ordinary definition of the word “factory:” “The term ‘factory,’ when used in this chapter, shall be construed to include any mill, workshop, or other manufacturing or business establishment and all buildings, sheds, structures or other places used for or in connection therewith, where one or more persons are employed at labor.”

In a case in which an attempt was made to hold the owner of a tugboat liable to his injured employee for employing him while under the age prohibited by the statute, and for a failure properly to guard a shaft, the court said: “We think that a tugboat is neither a factory nor. a ‘ mill, workshop or other manufacturing or business establishment ’ within the meaning of the Labor Law even when liberally construed for the purpose of protecting workmen and especially minors employed where machinery is used. A factory is a structure or plant where something is made or manufactured from raw or partly wrought materials into forms suitable for use. This is the primary definition which was extended by the statute so as to include any ‘mill, workshop or other manufacturing or business establishment where one or more persons are employed at labor.’ The term ‘business establishment’ as thus used means one resembling a mill, workshop or other manufacturing *179establishment. It is confined to things of the same general character as those named. It does not mean all business establishments where one or more persons are employed at labor, but only those engaged to some extent at least in manufacturing of some kind. Obviously it does not include a hotel, grocery, store and many other business establishments where one or more persons are employed at labor. A towboat navigating a river cannot be held an * establishment ’ of any kind without trifling with the plain meaning of the word. The Legislature has not provided that all shafting and set screws wherever used shall be properly guarded, but only such as are used in factories or establishments where business in the nature of manufacturing is carried on through the operation of machinery. The Labor Law should be read in the natural way so as to get at the exact meaning without forcing it in any direction-in order to meet the needs of either side in a particular case.” *(Shannahan*v. *Empire Engineering Corp., supra.)*

It would be unduly stretching the meaning of the terms of the Labor Law to hold that by installing and operating, by electric force, a mechanical device for chopping meat for his customers, the owner of a butcher shop converted his shop into a factory and thereby made himself subject to the provisions of the Labor Law governing the employment of labor in a factory. In *Schapp*v. *Bloomer*(181 N. Y. 125, 128), the court, speaking of the Labor Law, said: “ In construing this statute we should endeavor to ascertain its fair and reasonable meaning, avoiding a construction which either extends or limits its provisions beyond that which was evidently intended.”

There was no other ground of actionable negligence submitted to the jury for its consideration and the verdict has no legal basis for its existence.

The judgment and order should be reversed and a new trial granted, costs to abide the event.

Jenks, P. J., Thomas, Oarr and Putnam, JJ., concurred.

Judgment and order reversed and new trial granted, costs to abide the event.

*

See, also, Labor Law (Consol. Laws, chap. 31; Laws of 1909, chap. 36), art. 14, as amd. by Laws of 1910, chap. 353.— [Rep.

†

 Since amd. by Laws of 1913, chaps. 286, 464.— [Rep.

*

 Amd. by Daws of 1913, chap. 529; since amd. by Laws of 1914, chap. 512.—[Rep.