Transcript of Record — Arsenal Building Corp. v. Fleming

Supreme Court brief1942

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TRANSCRIPT OF RECORD

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‘Supreme Court of the United States

’ OCTOBER TERM, 1941

4 ;

: e ; a -

No. 924 are ana

. ;

) _ ARSE NAL- B ALDI G CO ORATION AND SPE. AR.

rye ¢ Ge: , PETITE NERS, . :

L. METCALFE WALLING, ADMINISTRATOR OF

THE WAGE AND HOUR” DIVISION, UNITED:

STATES DEPARTMENT OF LABOR.

Se ; LS

} \ om wart OF CERTIORARL TO THE UREED STATES CIRCUIT cceter

oF APPEALS FOR THE SECOND CIRCUIT

PETITION FOR CERTIOR: ARI FILED, FEBRUARY 5, 1942. od

_ CERTIORARI GRANTED MARCH 2, 1942. |

~, ang

‘SUPREME COURT OF THE UNITED ‘STATES

‘ OCTOBER TERM, 1941 —

a ae & 924

ARSENAL BUILDING ‘CORPORATION AND SPEAR

& bare INC., nha a etc

v8. °

de he METCALFE WALLING,. ADMINISTRATOR OF

THE WAGE AND. HOUR” DIVISION, . UNITED

‘STATES DEPARTMENT OF lex ackias

: 2° pire |

- ON WRIT OF CERTIORARI TO THE. UNITED STATES cIRCUIT COURT

OF APPEALS FOR THE SECOND CIRCUIT os

° e ms we - : -4

INDEX.

Be ; Page

‘Reeord from'D.’C. U. S., Southern District of New York............ A

‘Statement under Rule 13, Subdivision 4................0.e008: rae *

Summons .&.........-60.: Pesvicnscs Sati hakvhawinesksces 2

Amended complaint ....... bivsurcn se AAAS URES HONE iawn 2

Amended QNSWEF 2.2... 8eecccececcceees fe epeseveecdeccssneces *: 6

. Minutes of yre-trial conference ........ eevee eeegeccececccens bes

: ee

t Ae

I 61

. ee Oe eer er ee eeeyr ire eetegee :

* Saree —EGOEEY TOM oo icc cc dececscccvcccccccssigers * FS

SRR ONO wivso y's 6s web dees cusses renter 75

A eer eres Viadvostnecdabess * 80

‘Joseph Ferdinand ........... ‘ep tabeeviay espe 84

° _ Mggiuel Longueria .......... Wigptevsbicct¢e: Vaan

c- * , . * Jegephla Martines ««. i600. cscces ij epeceehwcern 128

. Morton Gural 62.2 605....20. Recess inseuee ds . 130

ee rr errr ry eee yer phendoer kaa

Julio Devalle ......... ecosesensai peesececee 190

RE TES a wiwctnpeapsanvccses cede Vevevcbess . 140

Benjamin Sterns¢huss gbecee bor ensesen pes ope 155

* NG TONE So bk gins ia dep ad endedas 169

Jupp & Derwerter (INc.), Priwrers, WASHINGTON, D. C., MARCH 17, 1942,

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di INDEX =

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Record from D. C. U. 8. Routhiern District of ‘New. "York —Con-—~ re 4

ao, aR TEERTE nt

"Statement of evidetiee—Continued ;

Se. of-—Continued Page

Irving Diamond éné ee nS a's pes'eebecs=seeeee 178

_ Maurjce R. Spear... ..-. 0-6 -eereeeeeeeeeees 182.

3 ‘Lazare Teper ........ Sean ais shat “eeeecetses 187 eas |

‘ Arthur J. Nebel épeebacnkevapenvabsese gtteee 198

. Georgé W. Silvera (recalled) edosccceccceese. B12

em ‘ Joseph Ushelevsky «........ Ceaeet Wee wdbike 219

‘ Andrew. Loebl stceeecseseececeeceseeessscey 226

Abraham Schenker ...:....--+ eeviveceyeces, 227! a

_ Plaintiff rests sass ee ee eee vidinwees sabeeaneene 231

‘Testimony of Leon R. Spear,....,.....+.- ee eer eos | 231

Oral argunient on behalf of plaintiff.-........ Favtede succes - 236 -

- Oral argument on behalf of defendants ....-.......- efopen. 204

’ Stipulation regarding the exhibits .......-...++++ Sabkwewtes - 287. :

Plaintiff's Exhibit 6 ......:....6055 bahwacteecepepoueses.: Wee.

Received at ........seeee bastes Sparen intoeets nba want (109 -

Printed: at... ccc ccccksecsvcescess haeenetnosisvet’ » 238 —

Plaintiff's Exhibit FT ccndacdack caphade quakes oye Upaes saree 289 ef

~ Received, OO ios csc saasedecewes pans Ries peesecess | ee

Printed. at. -....-00..000- peeuawee etebep ENE pdeee eaece, 2D

laintiff's Exhibit 8 elec erent eee e eee we eee ce semenenaes 289

qheceived DG oS ivslewire occ 0 BG cbc ces eevee teases es ows .110

Printed at ..:... Abe sekeeenee hehe ce ee nntiseee wees _ 289

Plaintiff's Exhibit 9 ..... Sut teancdsecuces CkgEAG TS deukon

Received at ...icccccccccciccecccecenicsseevgubevens 111°

Printed at ...iccceceeee eee e eee e eee eeeenseeeeenes io 2 .

Plaintiff's Exhibit 10 ........... Perc, Tee ere ee. peuubink. a

Received at ......00+ peasprehecseers <o4een erecerery 411,

Plaintiff's. Exhibit his foeses ss vice suage Thaldence cawetas 290° -

Received at :.......: eattbeeas cote cegOigs cieces 398

Primte€ Ot. 002 .4..5%- Lndesevacknaafas ry tr Cormey F

Plaintiff's Exhibit 12 .........:..... sevinevigdiseseae. -. 20

ne Be Pee OR Pee Sa EE ee TP ree ME Pe Reaeeae 112 :

*, MMM, GE Ss aaa c Wo vio wena Sas vata ok needek isnascs 290

Pisiete es MORE 16 os cei cekcscincevevce. Stineieivans 291

ITO WP cea widas seewsitens inc; seduans dveatbevrsves 113

UE Eo oct bs sicgcdccasinyus act Pee a ede sé 291.

Plaintiff's Exhibit 14 ..:.....:......0.-- Re ne Site ad 291

Receiv + aveseness Dhabebbsans feveses pAntebeocgece 113

Print sep aanee Rabi cakasahn os S iauNcakcus scents SS.

Plaintift’ Es) FT BRR OES « SRR pe EEO OR TL Te 291°

Received at ....... fog sdaceee eens pedeteevescedesssce 143

_ Printed ‘at. ...... iAavanteesaies sanknbgpacasecaneke 201

Plaintiff's Exhibit 20 ..... gtttteees asuethohestounkvcukia 292

* Received. at ..... bbe ad betakaseussuvepernkdsckstsasen 145

NG. Ah ang 6 ohh AcE EA aw ek bhino oe en Oe ee ° 202

Plaintiff's — geen PRBS teceheccccees Gsciampewtes - 292

Received at ......... powatnssiavence «Bleek ihe Rowdee 146

Printed a sae Pais dby sks cue ceenparsecesceanteyeew. ae

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) omen rae eer a “INDEX Sere ait” i674 Oe

S, ee s ‘ . aoe <

= /pecord from D. c. U. 8. Southern ‘District of New York—Con-

=”. . tinued aeveei i

Statement ‘of evidence—Continued Ri Maeric F ryehoe : ' Page.

Plaintiff's Exhibit 22 ....:............. pbbwe pes Wikssens~ ee

Received at -...... Vabvestees Metessesees ti tavees vos 5

Printed . Gt ‘oi cccuvecivncee esecee Deel e ee ere eeeeseeee 298

Plaintiff's. Exhibit 25 ........ ‘iiagwh ese ep eaimhisé tn ian "316

Received at ...... CGE SEMEL 15

‘Prleted at i.555.00.0-55 KO naka sn Vid cus Saas VOee 316

_ Plaintiffs Exhibit 28 ...@........... all ca néevlinace a beee | ee

es) aeaeed at Vig cag dqtivease seve ane Vecdued cbiaind tans 173

: . Printed at ;..... Siawecbebawihuaveuss ages ¢ RET eS 319

te (i: i Oi ciacivenek Prey Sat tbipas -@ 319

Received at ....... Po cm eee emeseesesnsesecencecereces 1738 -

____Printed at... veeeeee geese nt ipesseeees <=

‘PUGS TRAM BE ing os cevcg caves vecececasgiogoveces 320, .

Hy Reed at esc Seen SRY GXiS CoiAdces ions ‘ec

. I eh Pa Ch gu eden bud hadeehbeehh dere uerasiel 320

. . Plaintiffs Exhibit 47 A....... eee a eee ecatecmassva” Oa

a, ee * ‘Received at ..... PE Reo Be Sa hukis'duceesh < gee |

. Printed . at: ~...c.08 ci eineehdseseeas \onvecsgeccccoves 822

Plaintiff's. Exhibit 48 ................ peutifas Peusidue vis | oe.

Recéived at ......... CondeenceDeceyeestssesrss meeves Ohi

Printed at’ ...seses00- Leashaees pans bheacseteycrexs 822

_ Plafntiff's: Exhibit 49 ..... SS EEE T eT POP TPe eT ETC T TT NT 323 ©

ie Received at .......... Serer cere errrer Tier 210°

seine Printed at ......... seebavecskes bvimmyeasisehise vooam BR

Plaiftiff's Exhibit 50 ............055 Risxetee euks coeina ld. we

Received at ............ cue be bbkoeeus nipwtkexe nies OE

* , Peieted. at ..1..0:. ay cee eien PEEP eG veheiee Wes a - 323:

. . Plaintiff's Exhibit 51 ..... eidvetintawaeiasihwese 6s Sao |

PS eres Received. at rrr ee eee eee eee _ 210

Printed at *...... fowsccvcsscce Sesbobecobeossece veces 824-

Plaintiff's Exhibit 52............. RK EN KO MOLERER KAR SLAOE UA 324

DUG Sada foe saws ob 4i ukdaea she niase alae na €a: é 210

Sprite 46 ..5..55..50003--- ecccuawas\ Serer ee

Defendant's Pe ES ree? Pee eae ew nek > 8

go ge 1 ONE Ee esiee'e fhe PeseUbst sews dab enenieccaes. - Oe

Prine OE isc esecee es Reka id bacca a Weaeabaciass oe 888

Findings of fact and conclusions * y Seee Lh bhdasshacune - 326

Opinion, Woolsey, Deere eve neececsces sens peieseeseecees totes tag 330

' Judgment ............., Jitoseoge Jeapoesseosere Nebipupvesesdy 338

Notice of appeal ....... NVMCLAASSSROREA SR RU RAN SECE ER GSS ERS CPs OOO

Stipulation designating portions of record to - ‘contained in

EY OU AG Sd Kovk in beta centedeverscrcescs Cre 339

Stipulation regarding , ree ef exhibits........ tt teeeeee 341

Cherik’a certiBente: 2.50 cc cccccccccccgccccetece bao bo ima a> frases ‘BA2

Proceedings in U. 8. ©. Cc. A. Second Cirguit. Saks eis date aan Rxiwren 343

Opinion, Hand; J. owscesesces Segiiene cous baUEU RS bee 655 S< 08 oo

Judgment Pet Caiihy ats oe ahey LceWuhaeeGe hh Kine ike a's TC ickenat 349

Clerk's certificate te tteeeeeeeerseceeceseve « Committed in printing). 349 ©

eee allowing certiorari. eresein echo ereey ToT eTT eT ye seeeeeee o--* 350.

4 : <@ . m es -

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‘

; “Uiiited States Circuit Court of Appeals tor the Second

“o

"1940.

_ Cireuit.-

Puiip B. FLEMING, ADMINISTRATOR OF THE Wace AND Hour -

Dryision, UNITED STATES DEPARTMENT OF. LABOR, PLAINTIFF -

_ APPELLANT — ‘ : ;

. v. % C35 Os

ARSENAL BUILDING CoRPORATION AND Spear «& Co., INc..,.

PELLEES

1. The above-entitled suit was commenced on March 1, ;

_ Statement heidi Riile 13, Subdivision F

2. The name sl the. plaintiff i is Philip B. ae Addin

-istrator.of the Wage and Hour Division, ‘United States De-

partment of Labor, and the names of .the defendants are

’ Arsenal Building ee pone sad Spear & Co., Inc,, and there

has been no,change of parties.

3. The complaint herein = filed March. 21, 1940; the

answer herein was filed April 13,. 1940, the amended ‘com=.

plaint herein was filed March 31, 1941; and the amended: -

answer herein was filed March 7, 1941, The defendants have ~

not been-arrested, -nor .was bail taken or ‘property attached or

arrested.

4. This trial was idea March 31, 1941, and April 1, 2, 3,.

and 4, 1941, and the judge who heard the trial, without. jury,

was the Hon. John M. Woolsey, United States District

Judge. :

5. No question was reféqred to a ‘commissioner or com-

missioners, master or referee.

6. Final judgment was rendered herein on hed 21, 1941.

The appeal herein was taken on May 5, 1941. . - : aa

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401225—41—1 Patmos y ‘

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Sark reste: a (CAPTHON | aah fe

District Court of the United States de the Southern Distriet .

“4° of New York

—, Civil Action File No. 8-68

PHILIP" B. FLEMING. ADMINISTRATOR, Ww AGE. AND ‘Hor Div

sion, UN1IreD Srates DEPARTMENT OF LABOR, PLAINTIFF

" ARSENAL Boning | CorPoraTION ‘AND Spear & Co., Inc,

; = DEFENDANTS — See ae

A ere ene iad 9 te ‘Sumseons

To the aboyé named DEFENDANT: eee nd

You: are hereby “summoned and ‘required to serve upon

‘Irving Rozen, . plaintiff's attorney, whose address Wage and.

Hour Djvision, United States Department of*Labor, Federal

Building, 641. Washington Streat,.New ¥ Néw’ York, an,

=, answer to ‘the complaint which is herewith seed upon you,

* within 20 days after service of this summons upon you,’ ex-

clusive of the day of service. If you fail to do so, judgment by

Area default will be taken against you for the relief demanded in

the complaint.

. [SEAL] | ~ GEORGE: J. ase Foutmer,

ae “ck 1 ae #e Court.

Date: Mareh 21, 1940.

av’

Nore.—This summons is issued porsuait © Rule 4 of the

F ederal Rules of Civil Procedure.

a oe . % ‘ eeieiiadl complaint

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| Plaintiff brings this action ‘to enjoin: didiniinnts diets vio-

lating the provisions -of Section 15(a)(2) of the Fair Labor

Standards Act of 1938 (Act of June 25, 1938, ec. 676, 52 Stat.

ss» 1060,-U. S.C.:; Title 29 29, Sec. 201, et seq.); hereinafter called

the Act. ‘eee * :

ar Eien s te)

. Jurisdiction of this action is conferred upon the Court by.

‘Section. 17 of the Act.

ae 2 e : . r A ° te

& Ate , : 8

2 -¥ - E ad ; iL

Defendants aré, ef at’ all times- herginafter mentioned ;

were, corporations organized and ‘existing by Virtue of the

laws of the State of New York, having their principal places

of business at 225 Fifth Avenue. in the City, County, and

State of New > f ork, within the —— of this Court.

P <7 IV

Arsenal’ ‘Building Corboration: is,eand at ‘a times .herein-

after. mentioned was, the owner of a twenty-two (22). story

and basement loft building located at 463 Seventh Avenue,

New York;-New York. Defendant, Spear & Company, Ine..,

. during all times hereinafter mentioned, has acted and ‘i is acting

as the agent of defendant, Arsenal Building Corporatian, in.

- the management and. eee: of said peaieting.

With i: exception’ of 4 retail clothing store, a barber —

shop, and a cigar stand, the space in said building is and

has been, leased to approximately forty-two: (42) tenants,

approximately forty (40) of which have been: and are en-

gaged in the production, sale, and distribution of. ladies’ gar-

ments, and approximately two (2) ‘of: which have been and

- are engaged in the selling of silks, rayons, supplies, and -

. printéd materials at w holesale. to manufacturers, wholesalers,

and eéntractors in the ladies’ garment industry. Substan-

tially all of the materials from which such goods have been

and.are produced have been and are: purchased, transported,

- and Feceived in interstate commerce fropr-and through states -

-other than the State.of New York, and substantially all of

the goods produced by-said tenants have been and are: being:

produced for interstate commerce and have been and are being | -

’ sold, transported, shipped, and delivered in interstaté com-

merce from said building, in- the State of, New York to, into,

and through states other than the State of New York. Sub-—

stantial quantities of the silks, rayons, supplies, and printed.

‘ materials-aforesaid have been and are. purchased, transported,

_ >and received in interstate commerce from and through states

other than the State of New Yor and substantial quantities

of such goods -have been and. are being sold, transported,

shipped.and delivered in interstate commerce from id build-

ing-in the State of New York to, into, and Psihne states

other than the Sate of Bac! a The: said forty (40)

Jo=. WB O-e

riser 28

_tenants euneedh in 1 ‘produéing ladies’ ebtineanlas and thie said

“Two (2) tenants engaged i selling silks, are therefore engaged.

_ in interstate commerce, as s aforesaid. i

the Progugtion thereof.

. refused to compensate them for such excess hours at any rates.

ae | ee ae

At.all times hereiriafter mentioned, defendants have em-

ployed approximately twenty-nine (29) emphoyees. in and

about said building who are engaged in interstute ¢ommerce,

as aforesaid, and in the production of said goods for inter- .

state cominerce, or in re or occupations necessary to.

ee. | Se ee rae

“During all times ‘hereinafter somone: daleciieah: Spear &

Company, Inc., as agent for, and for the account of, defendant...

Arsenal Building Corporation, had and has the control, diree-

tion, and supervision of such employees. By so doing, de-

“fendant, Spear & Company, Inc. has acted and is acting: in

the interest of defendant, Arsenal Building Vorpoagnn, in

relation to such employees. | ,

‘2. Seesaae

Dato @ the edie RE Qctober 24, 1938, the effective

date of Section 7(a)(1) of the Act, and continuously through

October 23, 1939, defendants employed the aforesaid em- -

ployees, who were engagéd in. interstate commerce, and «in

the production’ of goods for interstate commerce, ass afore-

_ said, for Wworkweeks longer than forty-four (44) hours, and did

fail and refuse to ‘eumpensate the said employees for their

employment in éxcess of forty-four (44) hours in such work:

weeks af rates not less than one and one-half ‘times the regular ©

rates at which they were employed, “and, in fact, did fail and

refuse tO compensate them for such. excess hours_at any rates

zreater than the regular rates at which ‘they were employed;

and, during the period beginning October 24, 1939, the effec-

tive date of Section 7(a)(2) of the Act, and continuously to

the date hereof, defendants have employed the aforesaid em-

ployees who were engaged i in interstate commerce, and in the

production of goods for interstate commerce, as aforesaid, for

workweeks longer than forty-two (42) hours, and have failed

and refused to compensate the said employees for their em-

ployment in excess of forty-two (42) hours in‘such workweeks

at rates not less than one and one-half times the regular rates

at which they were employed, and, in fact,. have failed and

greater than the regular rates at which they were © employed.

‘

& on

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~~ 4 employing the. said employees for worky “

eating them for their employinent in excess of th said hours -

é ,

- in such workweeks at rates not less than one and one-

“the regular rates at which they were employed, defendants —

have violated and are. violating- the prov isions of Seetionis Z

“and 15(a)(2) of the “Act. + F |

The site attend an sold by said tenants, as aforesaid,

compete with similar goods produced and sold in other states

and said tenants in their said businesses compete with manu-

~~ facturer of ladies’ garments and -with persons selling silks,

_ rayons, supplies, and printed materials at wholesale, ‘as afore-

said, clseraisin in other states.

- Nefendants have, since ‘thaps ‘effective date thereof, contin-

~~ uously violated the aforesaid: provisions of. the Act and

threaten and intend to continue to violate theesaid provisions -:

unless enjoined and restrained by a judgment of this Court.

. : 4 . a. XI he . :

: A judgment. enjoining and restraining the violation here-

—inabove e alleged i is specifically, authorized by Section 17: of the

ot.

/ Wherefore, plaintiff demiands si

{training defendants, their officers, agents, servants, employ-

pes, and attorneys, and all persoris acting or claiming to act

n their behalf and interest, from violating the provisions of

Section 15(a)(2) of the Aet, both permanently and during

the pendency of this action, and such other ald further relief |

as may be necessary and appropriate. Tae:

_. Ggrrarp D. Retry, e

‘ Ree ee ees ‘Solicitor, *

faves J.-Levy,. a

Assistant Solicitor i in Charge. of Litigation, :

“; ArTHUR E. ReyMan,

Acting Regional: Attorney, na

InvinG Rozen, °

” © * Senior Attorney,

United States Department of Labor,.

Attorneys for Plaintiff...

Post Office Adee: w age and Hour Division, United States

— of Labor, 341 Ninth Avenue, New York, New’

ks in excess —

nent enjdining and Oo"

“gy

- Ih the above-entitled cause, respectfully allege:

| [CAPTION] .

Amended answer 7

The de ferglants, Arsenal Building Corporation ssid Spe

Company. Inc., for their aliswer. to the amended comp

1. Deny each and every ein sft an Paragraph Hf of

amended complaint. |

Admit the allegations i in Paragraph III of;the amend

complain vi -

3. Admit he allegations in Paragraph IV tof the-amend

complaint. « - $

complaint except deny that said tenants engaged in ‘produci

4. Admit the allégations. in Paragraph Vv of the amended.

“ ladies’ garments. and ‘said tenants engaged in selling silks m

-engaged in interstate commerce:

5. Deny each.and every allegation in Paragraph VI of the

“amended complaint, except that defendants admit that de-:

fendant Arsenal Building Corporation from time to time em- .

ployed approximately twenty-eight (28) employees in and

about said buildmg at the. times. mentioned" in the amended -

complaint.

6. Admit the alledetione i in i dees VII of the amended,

* . complaint.

~ aniended complaint.

7, Deny each and every allegation i in Paragraph VIII of the.

~ amended complaint, except as and in so far asjany such allega- °

tion is or inay be-achnitted in paragraphs 13 to 20 inclusive of

this, answer: and as to such allegations, adinit and allege |

them.

’ §. Deferidants are without knowledge or information suf-

ficient to form a belief as to the truth of ‘the allegatféns in

Paragraph IX of the amended complaint: °

9: Deny each a4 every allegation in Paragraph X of the

‘amesde «d complaint.

10., Deny each and every allegation in Paragraph Xi of me,

a ‘ FIRST DEFENSE sat ole

11. The. amended complaint. fails ‘to’ ‘tate a claim against

. the defendants or F either of them ‘upon which relief can be

“granted., Sisco

"SECOND DEFENSE | ee

12,. Thay the Fair hays ta Standards Act of 1938 (Act of

_ June 25, 1938, ¢. 676, 52 Stat: 1060; U.S. C., Title 29, See. 201 |

et seq.), in so far as it may be held applicable to the defend- /

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» 7° : “-* e

ants, Arsenal Building Corporation and Spear & Cothpany,

Inc., and to the said employees of defendant Arsenal Building

Corporation, employed in connection with the operation of

the premises described in the amended complaint, is uhcon-

- gtitutional as contravening Articles V and X of. the amend-

ments to the Federal Constitution and as not. within the power

delegated to. the Congress by Article I, Section 8, Clause 3

» thereof, or by any other provisior“of the said Constitution

or any amendment thereto.

THIRD DEFENSE—SEPARATE AND PARTIAL

13. That on or about February 19; 1936, defendgnt, Arsenal

x. : Building Corporation, through an employers’ association of

- which it was and is a mage Se entered into a certain

agreaméNt in writing with a labor union represénting the em-

ployees of said defendant, Arsenal Building Corporation, ap-

proximately 28 in number, employed in connection with the.

- operation of the premises described in the complaint, which -

said agreement, together with certain written nrodifications

thereof, was in full force and effect to and incliding January

31, 1939. ference jto said written agreement and written,

‘ » modifications thereto jis made with the same force and effect

as though they were herein set forth in full; and the same will

be produced upon the trial of this action. _:

14: That said agreement in writing provided a schedule of

mingnum wages, a schedule of maximum hours, and other

_terrys and eonditions of employmetit applicable to said em-

_ plifyees ‘of defendant Arsenal Building Corporation,..that

‘ationg other things, the saidggreement provided a maximum

ms pe weekly. hours of employment for certain classes of em-

plgyees of forty-eight (48) hours per week, and for certain

ther classes of employees of seventy-two’ (72) hours per

‘week, and that the said agreement provided certain specified

holidays. au ene !

15. That said agreement in writing further provided that

all hours worked in“éxcess of said forty-eight (48) hours per

week, or seventy-two (72) hours per week, respectively, or |

gon any of the several holidays specified tliereing should be

- compensated for at-the rate of time and one-half of the regu-

‘lar rate of pay. Ft,

16. That said agreement in writing by amendmegpt effective

February 1, 1938, further prdvided for certain aw of em-

- ployees a maximum’ workweek’ ofgsixty (60) hours in place

and instead of the previously effective maximum workweek

. of seventy-two (72) hours per week. ees

ve ; :

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17. “That trot October 24, 1938, to aiid including ns

31, 1939, the said employtes | of the defendant Arsenal Build-

ing Corporations. were compensated for any and all hours

worked in excess of forty-eight,.(48) hours per week, or sixty -

(60) hours per week, respectively, and for.any and all hours

worked on any of the specified holidays, at rates not less than

- one and one-half tires ithe regular rates at which they were

—_ yed.

8. That on or about’ February 4, 1939, defendant Arsenal

“Building Corporation, thfough an emplogers’ association of

_ which it. was and is a member, duly entered into a certain

. agreement in writing with a labor union representing the em-.

ployees of said defendant Arsenal Building Corporation, ap-

"proximately ‘in number, employed in connection with the

operation .of the premises described in the amended com<

plaint, which said agreement is and wil remain in full force

and efféct to and including February\3, 1942. Reference

to said written agreement is made’ with the same force and

‘effect as though it were herein set forth in full, and the same

will be produced upon tlie trial of this action.

19. That said agreement in writing provides a schedule of

minimum wages, a_schedule- of maximum hours, and other

terms and conditions df employment applicable to the em-

ployees of said defendant Arsenal Building Corporation, that,

among other things, the said agreement provides for certain

classes of employees a maximum workweek of forty-seven (47)

hottfe\per week for the period from February 4, 1939, to and -

_ including August 3, 1940, and a maximum workweek of. forty-

six (46) hours per.week for the period from August 4, ‘1940,

to and including February 3, 1942, that. for certain other

classes of employees, the said agreement provides a maximum’

workweek of fifty-nine (59) hours per week for the period from __

- February 4, 1939, to and including August 3, 1940, and a maxi-

mum workweek of fifty-eight (58) hours per week for the

_- period from August 4.1940, to and including February 3, 1942,

and that .the said agreement provides certain’ ‘specified holi-

days®

20: That fyom.February.4, 1939, t and including the date

of the commencement of ‘this stig the said employees of

the defendant Arsenal Building orporation were. compen-

~ . sated for any and all hours worked in excess of forty-seven (47)

hours per week, or fifty-nine (59) hours per week, respectively,

and for any and ail hours worked on any of the specified holi-

' days, at rates not Jess than one and one-half times the reguiar

rates at which they were employed.

”

° 9

7 }: Wherefore, defendants pray judgment that the amended

complaint of the plaintiff be cepa with’ totte to ‘the

deféndants. aes

Dated: March 4, 1941.

McLANAHAN, aiiahewe INGRAHAM, ™@

. Attorneys for- Defendants,

Office and P.O. Address; 40 Wall Street,

“ Borough of° ‘Manhattan, City of New York.

By Wa.rter Gorpon Merritt. :

' Kenneru C. NewMan,

_ Associate Counsel,

Office and P. O. panto 12 East 41st Street, Néw

' York, N.Y.

| |CAPTION] ?

" Before Hon. Joun C. Knox, District Judge * .

_Appearances: Gerard D. Reilly, Esq., Soficitor; Irving Je.

Levy, Esq., Assistant Solicitor in Charge of Litigation: Ar-

thur E. Reyman, Esq., Acting Regional Attorney; Irving:

Rozen, Esq., Senior Attorney, for the Plaintiff. McLanahan, °

Merritt & Ingraham, Esqrs., Attorneys for Defendants; Henry

Clifton, Jr., Esq., of Counsel. ¥

_ Mr. Rozen. Your Honor, this is an agiion for an injunction

under Section 17 of the Wage a and Hour Act, sometimes called

the Fair. Labor Standards

' The plaintiff is now General Fleming, who is Administra-

tor of the Wage and Hour Division.

. The complaint alleges that the defendant Arsenal Build-

jig Corporation is the owner and Spear & Company, Ince., is

the agent of a 22-loft building on 463 Seventh Avenue, w hich

is the corner of 35th Street, in the heart of the Garment Center

-district in New York City.

It alleges, too, that. the defendants employ approximately

29 employees, elevator men, freight-elevator men, passenger-

elevator men, firemen, porters, handymen, and electricians.

Ir? that building, as your Honor probably is aware, are

contained tenants who engage solely in manufacture and pro-—

duction and distfibution of .dr %

The complaint alleges that\the)tenants are engaged in’

the production of goods for comnieCe, or in processes or occu-

, pations ‘necessary for the production of goods for cogimeree, .

- -necessary to the production of goods for commerce, and that ,

and those siicgations in the complaint are admitted in toto

by the answer.

We claim in our complaint further that these 29 mainte- _

nance-employees are likewise necessary to the production. of _- --_—_ -

goods for commerce Ff are engaged in ocewpations Or processes -

they are therefore covered by the Act. e

As a matterof fact, we are arnending our complaint. I do

_hot know whether this is the appropriate time ‘to do so, to

- allege that the maintenance employees are engaged in com-

merce. May I do that at this time, too, your Honor?

TheCovrt. Any objection? - 9 5

Mr. Curton. Mr. Rozen called me, your i ‘the ‘other

day’ and said that if I thought it better, he would so move,

and I asked him if he would because of the fact that we have

associate counst] with whom we are not so very closely in

touch. I also indicated that if he would move ’ ferrpally, I

~. probably would ot oppose.

* The Gourt.”"Do you object to my-entering an ender here

_ with the direction that he has the right. to so amend?

Mr. Ciirton. If you care to, your * Honor.

Mr. Rozen: So I say our complaint in amended foum will

allege that the maintenance émployees, are engaged in com-

merce and the production of goods for commerce. “And the -

reason why we use the two phrases, your Honor, is becaiise -

our Act—your Honor may desire to look at it—in the sub-

stantive section, Sections 6 and 7, which establish the mini-

mum. vers the maximum hours, provides that every

employer shall pay to each,of his employees who is engaged in

commerce or mn the sidiachins of goods for commerce, certain ’

specified wages.- And likewise Section 7 provides that no

employer shall, except as.otherwise provided in this-section,~

employ any of his employees who is engaged in commefce, or

‘in the production ag goods for commerce, more .thap a cer-

tain number of hours without paying tirfie and a ‘half for

overtime. af

October 24, 1938, was the inception of this Act. The hours

at. that time were 44 hours, and the minimum rate was 25 - om

cents. On. October 24, 1939, the hours were decreased to 42.

_ On October 24, 1940, they were decreased to 40 hours. So,

at the present time. you have.to pay people in your: employ

overtime wagés, time and a half, after 40 hours, and 30 cénts , '

~ an hour, the minimum rate. rg

But we contend that these maintenance employees are en-

gaged 1 in commerce, or the production of goods for commerce, 6

or in —— or ee necessary to the produetion of

2 i

+3)

oo tia jw coy

goods for commerce. We say, your eee that shise freight-_

elevator employees, for exa le, who transport all the raw ma-”

terials inte-the tenant's ‘premiises ¢iid who transport all the

~ finished goods out-of the tenatit’s premises, are right within

the stream of commerce, because’ the raw materials are deliv-

ered to ‘the tenants, not downstairs at’ the freight-elevator

entran¢e, or the loading platform, but taken up by the truck-

man, or whoever he may be, or tke messenger . boy delivers

the raw materials right into the tenant’s premises; and not

until they get into the tenant's door or the tenth or eleventh

“floor, as the case may be, does inter€tate commerce cease ; and

likewise on the way out.

The Court. I understand that. aa a

Mr. Rozen. That is on the interstate commerce feature, your

Honor. Now on the production of goods, we maintain that

the tenants who are producing millions of dollars worth of com-

merece, and are employing thousands of employees, could not

function and could not do business and could not: produce their

goods unlgss the firemen in the cellar provided them with heat;

unless the electricians took care of the electric wires; ‘unless

the freight-elevator men functioned, and unless the passenger-

]

elevator men functioned. It is the same situation, your Honor, 7

as if you hada manufacturer located in some ‘small community,

perhaps, who had the entire building, four or five floors, and .

-owned it. There would not’be any question ip anybody’s mind

_ that in a ease like that, that the employees arevengaged in com-

merce or the production of goods for commerce, or in processes.

or occupations necessary for + the preduction of goods for

commerce.

The Court. WwW ell, that being the contention, Ww hat i is it you

want to do now? :

“Mr. Rozen. Well, your lignor has done some things for

me already: We have amended: the complaint. A case like :

this, your ‘Honor, can take a long time, oy.it- cau take a short

time. With'44 tenants in tte building and thousands of em-

ployees, and 29 maintenarice-employees, if ecounsel’on the other

side and ourselves too. for that matter, were not careful, the

case could be protracted ic enormous length,

The Court. Oh, yes. -,

Mr. Rozen. So we have made a very determined effort, your

Honor, to save thé time of the Court and our own timé, and save

inconvenience of the tenants>—;

TheCovr?. Can you concéde any of these facts?

‘Mr. Rozen.’ Some of the facts: we have asked the defendant

Ao conced, and some he has already conceded, ‘but some he

. ° a

° aad . . *

. =e °”

. > . .

mag

* finds himself ‘iiible todo. I think that many of them, if ypur |

‘Honor would listen to them, would be helpful.

-wé are quite certain that the case will get te the Supreme Court

. other hand, we want to be s@re that we have a fulland complete

~ come to the conclusion that the way we have got to’show the

-of their business, the amount of business that is done inter-

. State, the number of employees, they have, the pay rolls that

' they have, the number of dresses that they manufacture, the

tenance employees help it operate, and the manner in which

‘that by submitting at least’ perhaps ten, or perhaps less, of

‘to the tenants,¢o appear and testify before an examiner of

Secs.

Now in a case like this, the important thing—I. might say, |

your Honor; that this is one of the first cases of this kind, and °

of the United States, because it involves a vé yer phere, ptin-

ciple; as your Honor can see, and a-wide field of employees

throughout the country; and under these circumstances not |

only do we want 6 conserve the time of the Court, but on the * «@

record so that ng ben Court of the United States can have

ample facts to determine what the result. shall be. So we are

in that dilemma, your Honor. —

So, after mature consideration and deliberation, we have fe

Court—-even the. District Court; it is an important court, of

course, too—the actual facts, is to get from the tenants of the

building answers to a brief questionnaire which we are going

to prepare. Those questions will be chiefly as to the amount

amount of raw materials that they get; seven or eight ques- |

tions of that -nature fromm all the tenants*to be answered so

that we may have that in the record. A‘nd then in addition®

to that, to be absolutely sure that we have got a real picture

of how this building operates, and the manner in which main-

maintenance employees are ess@.tial, I think we must show .

the tenants in the building, to get them here to testify as

to the manner of the operations. I think in that way we will

be able to-cut down the time of trial tremendously; but that:

is something as to which we have got to have the cooperation.

of the defendants; because otherwise it means we have got

to subpoena‘each tenant, whigh we want ¥ badly to avoid.

I thénk if the defendant cooperated with-us—-

_ Fhe Coyrrt. I assume the. defendants would be glad to’ co-

operate?

Mr. CuLirtTon. Well, there i is just this about it, your Honor:

last Fall, after aiswer had been filed’ and issue joined in this

case, Mr. Rozen’s department issued quite » few’ subpoenas .

the Wage and Hour Division at hearings Which we were not

permitted to attend. We unsuccessfully sought to- preserve

oyr rights to appear at those. hearings before the Distriet

34 j

ey 7

— 13

Court here, and the right was sented: We, since that atime,

oy have assumed that in his. investigation of the affairs f the.

> &

tenants he got all the information which he now appears 1 not. =

' to have. :

- Nevertheless, when Mr. Rozen. wrote us and called us. on

the phone the other day, we again app¥oached the tenants

and asked them if they would give us the information so we

might tabulate it for him; and they, not being’ connected

with the defendants in any way, financially or otherwise, told

us that they: would not give us any information; that it was °

not any of our business; and I cannot say that I ‘blame thei.

the amount of garnients the teiants produce, or their gross ~

. The landiords are not cre ene to be interested in

business or anything of that sort. So although .we tried to

make the effort, we were unsuccessful; and I am afraid we

cannot supply this information from tenants: If, however,

Mr. Rozen can get it, and wishes us to agree that it is a fact,

without our having to concede the. materiality of any par-

ticular fact, we would be glad jo do so. oS

Mr. Rozen. Well, what I can do; of course, your Honor.

. is to prepare the questionnaire I referred to, and go to the

tenants ourselves and /explain to them that it is in an effort »

to save their time and convenience if they cooperate with us.

The Court. All right, then let the defendant have the

answers to these questionnaires and he will conéede them

without admitting the materiality or relevancy.

Mr. Rozen. There won’t be any question about authen-

ticity? . ire

The Court. That i is right. ;

Mr. Rozen. I think that could be worked: out wattatne-

torily, provided,’ of: course, we have the right, as we un--

questionably do, to submit some’of the-tenants.

Now, your Hovor, iv this case the defendant has raised

certain defenses——

‘Mr. Cuirton. Are you passing from the facts? E. :

Mr. Rozen. Well, L have got certain things listed here. I

‘would like to go in that order go I won't miss any of them.

Mr. Cuirton. Well, just on the question of facts, there is

just. one other thing I would like to eall the Court’s attention

to. Mr. Rozen also asked us to furnish him information

which was purely within our knowlgdge. We wrote him

_under date of February 26th, stating we would produce that -

information in advance of the trial, but we would like an

understanding with him that if we did, it would be ‘for the: -

purpose of shortening the trial, and that he would not seek

‘to prove independently and all over — the facts which

a ; G

-c

~ to ask an

using that word—but anyWay, we.are going to try to shorten’

the trial as*much as we possibly can.

- ree ee ae

he tr eS

we were. e willing to concede. We asked him to reply, and to dai

we have had no reply. I wonder if he eares to answer now.

Mr. Rozen. Of course, your: Honor, any ‘information that

the defendant supplies us with gill be used to the best ad-

vantage; and as I stated to your, Honor, we are going tostry

to shorten ty trial as much as we possibly can, and it is silly

opposing counsel—pardon ‘me, Mr. Clifton, for

The other request is whether we are going¥to object to the

7 autheriticity of the documents supplied——

The Court. What are these documents?

Mr, Rozen. I am ‘glad your Honor asked that ioe: be

causé we would dike to have it in the-reeord, because Mr. Clif--

ton has agreed. This will save a great deal of time in this’

ease. ‘It is an exact transcript of the actual pay rolls of the

- maintenance employees frofn October 24, 1938, to. the date

‘of. trial. -And on that I also asked Mr. Clifton to let me have’.

the names of the employees and, their positions which they

. occupy. I assume that will appear on the payroll? —-

Mr..Cuirton, Yes.

Mr,,Rozen. That will be ‘elbleckaie. your Honor. Mr.

Clifton also states in his letter that he will furnish .us with

available copies of ‘the leases of the tenants.

Mr. Cuirton. What I meant jis that we. would have them

available. ] pak,

Mr. Rozen. That means all copies of all leases, I assume?

Mr. Cuirton. Yes.

Mr. Rozen: Your Honor, Mr. Clifton also stated that he had

the actual rent bills and other bills rendered to the tenants

for, the last few a showing charges for electricity, and

so forth.o

‘1 think, Mr. € ‘lifton, I would like to have. the bills for the

lastsix months showing not only electricity but also’ water

Mr. Cuirron. No water.

Mr. Rozen. Some of the tenants, I believe, do pay for

water:

Mr. Cuirton. I say none. . /

Mr. Rozen. In the past, at any rate, a year or so ‘ago, there

-were,¢ases where tenants paid for water: I have seen rent

“pills & 2 | !

hat showed that...

- Mr. CLIFTON. - Apparenitly that is not so.

Mr. Rozen. I would like to have the fact, if it is, when.

that practice ceased, if that is the fact, and for a period of six

months prior to the cessation of the practice, to show the

amount of water bills paid ‘by the tenants; and any other

“3 t

’

- . eee oe “15

dhdiete that there weet ‘be to the tenants. vs the landlord

for any other services that we ave not aware of at’ the present-

« - time. “And-also a tabulatién showing the stock ownership of:

each defmdant, as well as the officers and directors of each

defendant.. ‘

_ Mr. Currton.. I do. uk see, your Honor, in any of those cases .

that’ it is going to be necessary. for Mr. Rozen to make any

_ extended independent check. -

: Mr. Rozen. I do not think it will, either. ‘Tam sure we can -

wes rely on the authenticity of the documents furnished by Mr.

> Clifton. —. | .

, The Cowrrt:. All right. a5 : cs

‘Mr. Rozen. ‘Your Henor, we have joined in this action the

defendant Spear & Company because Spear & Company was

the managing agent of the building, and the allegations with

respect to Spear & Company were’ virtually admitted; é

that under our Act. Section 3¢d), Spear & Company, I think,

would be conceded by defendant to be the employer of these

-employees, at least for the purpose of-this injunction. f think

it would be very helpfuF in the trial, and would shorten

it considerably, if the defendants would concede that fact,

* so that’ we could eliminate that point from consideration.

Of course you need testimony otherwise to prove those facts.

Mr. Ciirton. Your Honor, it is tradition 1 in the real estate

industry in. New York under managemciit contracts, of which .

this case is an example, that the employees employed in a

‘| particular building are always—i can say almost without

any exception—the employees .of the owner. That is true |

wider the Social Security Law, the owner is the one who is*

/- © responsible. for these: payments; the same is true of the Un-

: employment Insurance, Law of the State of New York, atid

the same is true of the Workmen's Compensation Insurance,

and varios other matters of that type which apply to. the , .

_ personnel employed in this. type of building.

What we do concede heresis that in the control and direc-

tion of these working forces, telling the employees what to do,

what their shifts are, paying then off at the end of the week,

and so forth-—— °

Mr. Rozen. Hiring and firing? - ~

- - . Mr. Curro. Possibly. But the owner reserves the right

specifically under the management contract ‘to veto, any such

instructions issued by the agent. The net result is that Spear |

_& Company acts as the agent for the owner in all of these

matters as well as in the collection of rerits and: the tenting

of space, and so forth. So that I am unable to ‘concede,

_ because I do not believe it to be : a fact, that the employees,

_ —

o |

agg

‘are the employees of the agent. But I do admit, I think, in

. the answer, that so far as this oe * eoncerned, the Govern.

ment, if it sueceeds, is entitled have Spear &, Company

and the ownér jointly bound by the terms of the: Testraining

order. .

The Covrrt. I hoa think so. :

Mr. Rozen. In other words, if we ‘show tict ‘the mainte-

nance ‘employ ees are entitled to the benefits v1 the Act, an

* injunction will issue against Spear . & Company and the

Arsenal Building Corporation?

Mr. Cuirrox. As I pointed out to Mr. eben | before, the

usual form of an injunction runs against the defendants, its

agents, servants. and so forth. ae

The Court. Yes.

Mr. Rozen. Your Honor, in defendant’ Ss answer (handing to

‘Court),- the answer of the deféndant, as you will see, ‘your

Honor, contains four or five affirmative defenses. Of course

~T am sure that Mr. Clifton interposed these defenses in good

’ faith; but I think that time has now shown that'some, if not

- trial conferences, but I

all of them, are not proper at this time. I do not know exactly .

‘think that a great deal of time at the

_ the limits 6f-your Honor’y authority and jurisdiction at pre-

trial could be saved if some of them .could be disposed of at

this time.

The Court. Well, first there are questions. of law, aren’t

there? -.

Mr. Rozen. Yes. There’ cannot be an¥ question at all but

what the first ‘two are absolutely invalid. - aso

The Court. Do you stand on those defénses?

Mr. Cuirton., The defense proposed in paragraph i2 we do’

‘not stand on at this time, because we were satisfied some time

subsequent to.the filing of our answer that there was juris-

Mr. Rozen. That is withdrwwis? cnet ‘

Mr. Cutrron. That is withdrawn. -

As to the jurisdiction of the subject matter, I think I per

like for the present tc have that remain because of its interrela-

‘tion with the other defenses.

The Court, That may have a bearing upon the proof as to

_ the extent of the business done in interstate commerce. -

Mr. Rozen. Your Honor, under the statute, under Section

17 of the Act, which I have given you, the District Court of

the United States is given jurisdiction over actions for®jin-

junction. So I cannot possibly see how there can be any doubt -

about the jurisdiction of the subject matter.

- Mr, Cuiirron. You are assunling that the Act sis, lies.

-. has misstated the purpose: of this defense. We make no claim’ |

oa ee ee

Mr. Rozen. Even if it does not apply. We have got to eae

that question tested. out somewhere. -

The Court. I think I will overrule that defense. tl ae

Mr. Cuirron. Allright. .

Mr. Rozen. ‘Thank you, your Hoior.

Now, the fourth defense is one of constitutionality.

The Court. Has the Attorney General been notified? —

Mr. Rozen. I believe the proper steps have been taken in ,

this I will make sure about that. ° I am glad your Honor

sugge hat. -

Since the complaint was drawn, and since the answer. has

been interposed, the United States Supreme Cotrt has ruled

that, the Fair Labor Standayds Act is constitutional. As a

matter of fact, it came dowr? only a few weeks ago, February

3, 1941, the case of the United States of America, against Darby .

Lumber Company; so I can scarcely see the merit of that at. eae

’ this time. At the time it was interosed——

Mr. Cuirton. I think Mr. Rozen unintentionally, perhaps,

that this Act ‘is unconstitutional generally, or that there are

not certain situations to which it'might not be validly applied;

but we do say if it is applied to the defendant and these em-

ployees, then it is unconstitutional. :

The Court. All right.

’ Mr. Cuirron. I think that is quite a different hing: and that

issue was not passed upon in the Darby case or any other case.

Mr. Rozen. Well, it is a question of the power of Congress

to enact. legislation with respect to these employees.

-Mr. Rozen. No; but I would like to conserve the Court’s °

energy ané our own, té@° But if we can’t get Mr. Clifton to

see the light at this time, we‘ will have. to postpone. the

discussion.

The fifth defense, your ‘Boner, is.rather an anomalous crea-

ture. It is labeled “Fifth Defense, separate and partial.” As.

your Honor has{n mind, this is an action for an injunction, and

how you can have a partial defense for such an action, I cannot

’ see. _Either we are entitled ‘to an injunction or we are not en-.

titled, to an injunction. " There cannot be any partial defense.

¢ to an action forsan. injunction. And I think Mr. Clifton will

readily agree that a partial defense has no merit or substance

in an action for gn injunction, . It would eliminate quite a bit

of proof and necessity for preparation for trial if that defense

were omitted.

Mr. Cuirton. Here is the point of that defense, your Honor. |

The plaintiff alleged that ee to October 24, 1938; the.

* 401225—41——2

ate .. ah ee ent

defendants did not’ ‘pay their employes at the rate of time

and a half for all hours w orked in excess of 44, 42, or 40, as the |

case might be. The fact is that the defendgnts,have for many.

years been parties. to a collective bargaining agreeroent with

an affiliated labor union. which provides wages; hours, and ‘work-

ing conditions: One of the conditions provided in these con-

traéts, which are still in force and effect, is that. time and a half |

shall be paid for overtime in excess of a ¢ertain number of hours,

but those hours do not coineide with the limits set down in the -

Fair Labor Standards Act.. The contract limits are slightly

longer per week than those in the ‘Act. And it was in-an

effort to show the true facts with respect to exactly what. over=

» time was paid, that we labelled this rather anomalous aninial

‘a separate and partial defense. Moreover. it seen is to me,

*althoueh Ihave not the law. handy, that’ in cases of this

character the Court, as Mr. Rozen himself has said, is éntitled

to know all the facts, and it,may be that some of the faéts

which. are set forth,in this defense’ will appeal to. either the.

Court which tries. the case, or. the appellate courts, as being

material to the issues raised by, the complaint and the answer.

Mr. Rozen. ‘But again I repeat, your Honor, the fact that’ -

-an employer has paid, his employee time and a half, let ais say,

afte® # 50-hour wéek has been worked, is no a either

partially or wholly. ae :

~The Court. I quite agree with you on that.

Mr. Rozen. That.may\ come out in the trial, perhaps, but:

as a defense it just® ‘can’t be. You can’t have a partial de-

fense in‘an injunction; and as a total defense; private parties

cannot get together and make a private contract in contra- |

vention of an Act of Congress.

Mr. Cirrron, We do not make that contention,

-Mr. Rezen. So.that- whole defense should be stricken -out

and that would shorten the trial considerably, -

The.Courr. Chey will offer in evidense, I assume, the agree-

ment they havi a labor union.

Mr. Ciirron t.isvight. And I think, Mr. ‘tenie will

agree as to its. authenticity. And it won't take but a minute.

The Covrr, The. trial court ean pass on that. That won't

take long. if vou will agree that that 1s the ‘contract with +,

labor union. h

* Mr. Rozen. I won’i ‘press Mr. Clifton. on that point. Sig

assiime we ‘will have access to the records of Spear & Com:

pany, and: also Arsenal, so we can check: any data that can

: be fyrniched.

Mr. Cutrron. Certainly. te i ;

The Court. Is that all? |:

. o

AP ace

: Esq., Associate Solicitor for Defendants.

Mr. Rozen, I have nothing ‘else. EP ;

Mr. Cuirron.. I have nothing else, your Honk.

_ Mr. Rozen. Thank you very inuch, your Honor.

oiaee | [C: APTION | _

Before Hon. pan M. Wootsry, District Judge : m

q° ry

New York, March 24, 1941, 11:00 a. m.

Appearances: Gerard D. Reilly, Esq., Solikitor: and Irving

J. Levy, Esq’, Assistant Solicitor’ in, Charge of Litigation;

Arthur E. Reyman, Esq., Acting Regional Attorney; and

‘Trving ‘Rozeti, Esq., Beni: Attorney, ‘of Counsel, for the.

Plaintiff. MecLanahan, Merritt & Ingraham, Esqrs., Solici-

tors for: Defendants; “Walter Gordon Merritt, Esq., and 43 7

Henry Clifton, Jr, Esq., of Counsel, Kenneth C. Newnian,

. Mr. Reyman. If your Honor please, may I introduce my-

self? I - Arthur Reyman for the plaintiff dnd Mr. Rozen

is with

- This mates is entitled Philip B. ‘Fleming, Adina iateasie ;

of the W age and Hour Division, United’ States, Department .

of Labdf, v. Arsenal Building Corporation and Spear & Com-

pany, ine. “It involves a suli by the Administrator for the De-

partment to enjoin and: restraiti’ certain alleged violations .

of the Fair Labor Standards Act of 1938.

The Court. I:would not know what that is. # never read

an act until it is brought to me officially.

Mr. ReyMan. It -is ‘the Wage and Hour Law, so-called,

-your Honor, : ,

The Court, Oh, yes; ‘Thc heard of that. . eit

Mr. ReyMan, The complaint alleges, shortly, that the ~

‘Arsenal Building Corporation, owners of a jarge ‘building

in midtown Manhattan, and their agents, have failed ‘and

refused to pay ov ertime rates to certain: yf their employees

as required by Section 7 of. the statute, "

», The employees involved are usually known as maintenance

employees; that is, elevator praetor porters, electricians,

and so on; the men who work:at the’ building, keeping it in

repair, arid doing certain presaribe chores around the build

ing for the tenants and ‘for the | owners. Paes ye

The Government maintains that the Act-applies to them, °

“and that they should be paid overtime rates for hours after

the number of hours specified in Section: 7 of the statute. °

The employees involved are usually known as maintenance

y ° . fs) pm F

employees; that is, elevator operators, porters, electricians,

ete “Bike

: 20

“and so on; the men who work at the building, keeping it if

’- repaif and ‘doing certain prescribed chores around the building

for the tenants awd for the owners.

The Government maintains that the Act’ applies to ther,

~ and that they should be paid overtime rates for hours after

o ~

the number of hours specified in Section 7 of the statute.

- So, briefly, the defendants denying this, the question before’

the Court is a question of coverage; that is, the spplicability

of the Act tothe employees of .these defendants. ’

The Court. Have you any decisions at all for guidance?

_ Mr. Reyman. There are District Court decisions and other

decisions under another section of the Act.

_‘FheCovrt. But not on this particular one? °

’ Mr. Reyman. No. One case was tried in Philadelphia some

few days ago, and that case remains undecidel, so this is,a-

novel question. ‘

The Court. On the’ same question? ‘

Mr. ReyMan. Pravtically the same question. )

' The Courf. Why is it the United States Attorney i is not ap-

“pearing in this case instead of some representative of the local

concern? Is there a particular provision for thee?

° Mr. ReyMan, Yes; in Section 4 (b) of the Act, if the Court

‘please, the Administrator may appoint attorneys, and attor-

heys appointed by him ay ong for and represent the Adminis-

wator in any litigation, but all such litigation- is subject to

the direction end control of the: Attorney General. By official

action of the Attorney General in a letter dated January 18,

1939, to the. thep counsel of our Divisign, all civil litigation was

put within our Department; that is, the Department of Labor,

' subject to the general supervision of the-Attorney. General, and

just recently the Attorney General in'a Department of Justice

eircular has clarified that, so that we handle all civil litigation

and the United States sa nitted s office is in cei of of all crim-

inal matters,

The Court. The reason I raised the question was that we

had-a great deal of difficulty at one time with the Alien Prop-

_erty Custodian ard their having private counsel, or eounsel

of their own, instead of having the United States Attorney, and

there were several decisions in those litigations in which they

said’ it could not be done, and you would not understand, nor-

inally speaking, unless there is a mandate of some kind but that’ - °

it would have to go through the law offices of the Government.

Mr. Reyman. We understand that, your Honor. In. fact,

" iif other criminal cases where I have appeared and other at-

torneys have appeared before the grand jury, and so on, we

are designated special attorneys. The matter has. been thor-

. ~* *

‘

oe) PS Beek ona |

oughly thrashed out and I would be glad to submit the authori-

_ ties to you if there is any doubt in your Honor’s mind.

The Court. I do not know. I just raised the question. If

the statute covers the matter, the question, is whether You are

yourself, so to speak.

Mr. Reyman. Where is no doubt in our minds, -

The Court. If Mr. Merritt has not any point to:make on

that question, I don’t think there is any tieed ,raising. it

under this statute providing” these, gentlemen are properly -

appointed.

* Mr. Merrirr. We are looking for. a decisicn on ‘the. merits.

(Discussion off the record.)

Mr. Merrirt. I would like to say a word, if I may, just to

completely orient you on this case without trying to be contro-

versial at all. The defendant in this case runs a building, that

is, the Arsenal Building,- and the codefendant, Spear & Com-

* pany, afe managing agents. Weg

' «The Cotrr. Who are’ the codefendants?

_ Mr. Merrirr. The Arsenal Building is the building®: which

these men are employed, and Spear & age, oes are their man-

aging agents. They are notin any way ehgaged in iriterstate |

commerce. They rent space. It being a loft building, they.

rent space largely to manufacturers in the Garment Center,.

who produce goods for interstate commerce.

The two fundamental poitits which will arise@re, No. 1, that

the statute is bimited to employers engaged in interstate as

merce. "

The Covrr. Is not the Arsenal Building an employer?

Mr. Mexsirr.. Yes; but not engaged in interstate commyrce.

¢ It just rents space and runs the building. That is our first

“—point.

, Our sscond ‘point will be Wat the particular employees are:

not themselves ‘erigaged in. interstate commerce, so thereon

hangs the whole case. It isa question whether these porters,

janitors, night watchmen, and elevator men who furnish the

‘service that goes with renting space fo manufacturers——

The Court. That is cognate. I find~the more,you sit in @

- Federal Court the more you get to thinking horizontally in-

_ stead of perpendicular, and in Conetuand on

Mr. Merritt. Exactly. I just want to get to you what our

viewpoint is. :

The Court. The idea of whether they are in ipterstate com-

' merce or not, and therefore whether the law applies to them?

I do not know what the law says., Bat y6% have-to think also of

the Employers’ Liability Act under Which railroad employees

are sometimes in interstate ¢ commerce. and sometimes not in

“

P Wh: 5 Ce te . | /

ao.

interstate commerce.. I have had ‘a number of those cases.. I

should think that would be-one of the types of differentiating

deejsions you might consider. .

s to“the applicability of this Ait, r really do not know,

but I could well understand that these gentlemen here may

want to make 4 record of exactly who these people are and’

everything of that kind. Perhaps you cannot stipulate all

of those facts and they will have.to make a record‘on it. I~)

should think that would be ‘a highly desirablething_ to do.

Mr. Merritt. ‘1 am not raising opposition to that?

The Covrr. It is very old-fashioned to talk about things like

demurrers’ because everything has-been, turned more, or less

upside down; but I should think that would be your Dheition, |

practically a demurrer to the evidence. na AT tag

. Mr. Meraurr. I think it very likely will be. | -- '

The Covrrt. In other words, like a motion to dismiss their |

case at the end of it on which you would argue ‘all these con- ‘

stitutiona¥points and all these applicability points. ‘I do not .

‘know whether there is any constitutional point.

* Mr. Menrnitt: The only constitutional point would be that

if you interpret the Act as embracing all of these different

classes of people, we’ will, of course, reserve the point that

thgt would make the Act unconstitutional by giving it suchr

an extendgd application. ~

The Court. That is another question. Has not the consti-’

tutionality of this Act been passed on by the Supreme Court?

" Mr. Merriti. It has, and we do not raise any question as

to constitutionality of the Act as a whole but, of course, we

want, to be free to argue that if you should say it applied,to «

a bootblack |

The Court. Yes; to-a casual on the flor? - ,.

Mr. Mreerrrr Yes; that would be giving an application

which would be unconstitutional and therefore you wouid ~

not give it such an interpretation. That would be one of gur

arguments, I’ mean.

The Court. You give me all theycases that deal. with this

. éase in particular. .

* ——

Mr: Reyxian. We will. .

~The Cevat. And also differentiating cases on the question

_of the Employers’ Liability Act. | i

Mr. Reyman. We will cover them for you, @pur Honor. 2.

The Covrr. And then you put anything in that you*want

to on your side: about it, Mr: Merritt; and you do not have

to exchange your memoranda at all.

(Discussiow off the record as.to submission of trial briefs and

- memeranda of law.)

’ a

a Te

‘

The Court. Then suppose we adjourn this case until next -

Monday and at that time we will go on and take such evi--

dence as you want to put in. -I will give you all the time

you-need to ventilate every aspect of. the case, and I hope

“i the end of that time I will be able to deal with it off the

ench -

There is only oné thing, and I will greatly aipredste it

if you will get your trial briefs to me by Friday the 28th.

Mr..ReyMan. We wil) do that.

If your Honor please, as you mayi\ know, ‘the Départment

has issued certain interpretative bulletins intended to guide

- the keneral public with respect -to our views. “We have no

. right to interpret. the law, so’ we simply state our views, and

if your Honor cares to have our views.on cov eineste I can’

submit them: to you.

The Cor oe. I will hear that rails

(Adjour d to March 31, 1941, at 11: 00 a.m.) °

New York, March 31, 1941, 11:00 a. m.

Trial resumed. :

Present: Mr, Reyman, Mr. Rozen,'and Miss Helen E.

Cottrell, of Counsel for Plaintiff. Mr. Merritt and Mr. Clif-

ton, Jr., of Counsel for Defendants. Mr. Kenneth C. New-

man.

The Court. ‘i all-of the gentlemen and the lady here as

counsel, members of the bar of this Court?

» Mr. ReyMawn. For’our side they are. Miss Cottrell is ap-

pearing here this morning for the’first’ time.

The Court. Is that true of counsel for the defendants?

Mr. Merritt. Yés,.that is, your Honor.

The Court. I have had the penefit of your trial briefs

and have been over them with the greatest care. I have :

a few things to ask you about. I do not think we need to

have a formal opening on account of the trial briefs. The

question is rather clear, but I do want to take ~ one or two

things with you.

* In the first place, I will tell you that that. First Circuit

Court ef Appeals case is reported now, Bowie v. Gonzales. It

is in 117 F.(2d) 11.

__ Thave one_thing that 1 want, to mention which I am afraid

there will be a little bit of a cramp about, but I object to,

in the briefs of counsel, ubj supra or ubi, and in a number

of cases especially in the Gpvernment’s brief that was used.

jt may be just a notion of rine but I am rather fussy about

it and I like to mere things. referred to spent I am

- < °

24 : ‘g

mee teltlane you this because I ‘think all judges feel prac-_

tically the same about it. It is a nuisance to have to go back *

and’ look up where the thing was before when you are read-

ing along. _

I want to know in the first place some of theeommon

grounds, It is practically commen ground, isn 't it, fhat there

are circa 42 people who are tenants in this building? Js that

_ right? '

. - Mr. Reyman. That is correct. |

The Cov RT, Who are manufacturing winknti, we will say,

or tenants that are in interstate commerce or sell to interstate :

commerce, or something like that. .

Mr. REYMAN. That is correct.

The Court. The second question is, aside from the barber-

‘ shop and those two Or three little things on the ground floor, °

there is nothing else in the building except these people that

are engagéd ‘in manufacturiag: women’s clothes. and selling *

silks and that ‘sort of. thing. which goes into interstate com-

merce. Is that right?

Mr. Merritt. That is true exeept for the office of the man- -

. agement.

The Court. Oh, well, you lave to have a place for that.

‘Mr: Reyman. There is also a trucking company, your Hon-

or, on the ground figor, which is trucking materials that go out

of the building. They have an office and: place of business —

on the ground floor. -

;, . The Court. When we were here belore we dealt with your

‘# right to appear for the United States by your loca! attorneys, -

and now we have dealt with this question of membership in

ihe bar, so you ail have locus standi apparently. —

Now I want to see, in appropriate course, the terms of t

least one typical lease, if they are all the Sante — of sno

I suppose you have that? we

Mr. Reyman. We are prepared; yes, sir. °

_ The Covrr. And I want to see the terms of the manage-

* ment agreement with Spear & Company. . I was-wondering

why this particular building was singled out, and whether this *

_is a test case or not. Is this a test case which will cover 4 .

lot-of other buildings, or is this particular building sui generis?

Mr. Meraitr: 1. dad not pick the case, your Honor. The

Government could answer that question better than, I, Hut *-

there are, I understand, other buildings: which are in the same

situation.

‘The Covrr. Is this a typical loft and erieneactrtee

* building?

ee PE

; t

Wan TES i 25 “*

Mr. ReyMan. Fis typical of a good many. It was not par-

ticularly picked. It just so ak ae that it came into the |

legal division

~ The Court. No; I did not mean that you picked « on. it, but

~ what I meant.is that this was chosen or selected as a case that

would be representative of something, or a séries of other cases. -

_Mr. Reyman. That is very true.

“The Court. We will deal later with the question of the partial

defense, I suppose, involving that, union agreement, I could

not quite understand that. G

Is there a New York State Wages and Hour Act? oy

Mr. Reyman. Not like this; no, sir. There i is a minimum 4

‘wage act forwomen. | ;

The Court. There would not be satiate: that del be

“complementary to this, and would fill up any lacunae that were

-mjssing? :

Mr. Reyman. No, sir...

The Court. I suppose ‘somebody representing tiene & Com- ?

pariy, if you have not agreed on it, will tell me abou} their rela~

tion to these maintenance servants, and what they have a right

to do to them, and so forth? .

_ Mr. Merritt. We will follow your Honor’s suggestion and

produce, of course, the management contract. .

. The Court. I must also know how they manage the obi tract.

In other Words, have they got tlie entire right to engage and

fire them, or would they be just included in any relief that was

granted as against the building, assuming that I should decide

to give some relief.as against the building? Would they be |

included merely as agents, the way injunctions usually read? .

_ Mr. ReyMan. -I was just going to call the Court’s attention

for a minute to the pre-trial conference.

‘The Courr. Yes; I saw that and read it.

Mr. ReyMAN. Answ ering your Honor’s question, we had in-

_ tended to call-someone from Spear & Company for the pu

of testifying as to the exact relationship, in addition to the

“‘managemént agreement.

The Court. These pre-trial conferences may produce a great:

deal of nutriment to a District Judge, but this-particular one,

I am sorry to say, I do not think does that, although they shook :

out one or two of the defenses which were antedated by these

Supreme Court cases. —

Mr. Reyman. We had agreed that if a case for injunetion e

was. proved against the Arsenal Building, it would also in-

‘clude the agent. That probably is the substance of what we

agreed at the pre-trial. ‘We do think, and we-think we*will |

show by facts, a ioe if it is right, is entitled

a ; sheds - act oy : {

a4. oe See

_ to an injunction against both-of the defendants because of the

degree of control exercised by the building-agent, Spear -&

_Company, over thé employes in question. ©

‘The Court. There is a denial of paragraph 10 of the com-

plaint. We will talk about the complaint as referring -to the

amended complaint. There is a denial of that, but isn’t it a

fact that the defendant intends to, unless enjoined, continue

‘its present course? I mean, ist that common ground?

Mr. Merritt. Yes.-

The Court. I supposed so. ar

Mr. Mprritr. May I rgad just a page of a rather carefully

- prepared admission whic Ahi will be helpful?

‘ The Courr. Yes; bu ¢ until I finish with the matters

‘that I looked up and wanted to talk to you about.

- Am [correct in assuming that there has not been any admin-

istrative decision; backed by an industry committee, or what-

ever you Gl thenf, of the Administrator, as to these mainte-

nance employees here under consideration?

Mr. Reyman: There has been a decision to the point that

the Administrator is able to make it... W% e do not make admit

istrative rulings in thi@type of case. ;

The Court. Oh, you. mean if you had an industry commit-

* tee—— -:

~ Mr. Reyman. But the industry committees, if your Honor

please, are engaged in a function entirely other than and out-

side of whether or not certain employees come under the cover-

age of the Act,” The committees are set up to determine what.

- may be done—— ;

The Covrz. On wages, is it?

Mr. Reyman. That is right, outside of and away from Sec-

tion 7 of the Act. ;

Mr. Merritt. The answer is, is it, not, Mr. Reyman, ‘that

there have beer: iio industry committees set up for this industry?

The Court. [ supposed I would have heard about‘it if there

_ were. The whole question’ here is: whether all of these main-

tenance employees come within the atnbit of this Act, or if

_not all of them, whether some of them do, isn’t it? There may °

be conceivably quite a bit of difference in the status of the dif-

ferent employees. I should think, although I am not sure. I

have not made up my mind at all.- I am just feeling it out.

When you ise the words “maintenance employees” sup- .

_ pose that.is an exclusion, by implication at least, and t¥at im-

_ plies that they do not take any part in, or are ‘not employed.

in any way by the tenants, and they do not operate machines

_and‘they.do not do any manufacturing. for the tenants, isn’t

that “ight? :

27. aa oaes ee

Mr. ReyMan. That is-right. :

Mr. Merritt. That_js-true.

The Court. Then’ are all the goods delivered be and deliv:

ered to interstate carriers, delivered and received in, the ten-

ants’ premises?

Mr. ReyMan. So far as we baie: the ainda are: delivered |

at the tenarets’ premises from interstate commerce and they -

leave the tenants’ premises to go. into interstate eommerce.

_ The Court. In the American Trucking case, the Supreme ~

Court disagreed with the administrative ruling, didi’t jt? t

Mr. Reyman. No. The three-judge court, if your Honor

please, before which ‘the matter, was tried in the first instance,

took a view opposite than, sours, but the ss teeed Court

reversed, —

-_ The Covrr. But the Supreme.Court decided saaaey 0 the

Circuit Codrt of Appeals.

‘Mr. Reymawn. Contrary to the ate -telne court; yes, sir,

The Covrr. I suppose I-should see the pay roll of” mainte-

nance employees; or is that one of the oe you are going ~

to. put in?

Mr. ReyMan. Yes; itis, your Honor. 3

The Court. And rent bills, water and electricity. bills—all

those things.

_ Mr. ReyMan. We will ‘have them.

~The Court, Then I should suppose the- next thing. in cual

would be fér-Mr. Merritt to read in his adniission he has pre-

pared, and perhaps that would clarify the matter somewhat.

I have a very good idea in my mind about it now.

Mr. ‘Merritt. ‘The defendants admit for the ptirpose of ‘this

suit only that they are not and have. not been conformed\to

the provisions of Section 7 of the Fair Labor Standards Att

in respect to: the payment of overtime wages to employees HK

defendant Arsenal Building Corporation. employed in or about*

os bitilding of that corporation known as 463 Seventh

Avenue. .

It is admitted for the purpose of this suit only that, with

certain minor éxceptions the tenants of 463 Sev enth Avenue

and the employees of said tenants are engaged in the pro- -

duction of gogds for interstate commerce within the neaniag:

of the Fair Labor Standards Act. | —

In justification of the aforesaid nonconformity the defend-

- ants contend that the Fair Labor Standards Act has no appli-

cation to them or the said employees of the Arsenal Building

. Corporation, and that the mere fact that the defendant Arse- -

nal Building Corporation is a landlord of tenants who produce °

: 2 ° ;

r. . 28.

goods for interstate commerce does not bring the landlord

or its employees under the Act. :

The Court. I should say you probably better go ahead now

and make your record. I do not think it*is necessary to: have

openings, because I know abouf it now, as I have gone over

the matter-so carefully, thanks to your, brief.

‘Mr. ReyMan. There is one thing with respect to the plead-

ings we would like to call to your Honor’s attention. We

- advised counsel on thg other side several days ago that we

did: not’ propose to rely on the allegations of paragraph num-

bered 9 of the amended complaint, and do not propose to

offer testimony in support of it, except as the testimony ad-

duced may be applicable. In other words, technically I sup- .

pose we should move to strike those allegatidns. ‘as

The Gourt. That is the rationale of the whole Act, isn’t

it! t

eet ReyMan: It may be, We don't think these allegations

‘ are essential to support our’ action.’

-: The Court. I think one of the troubles of your complaint, .

if you-do not. mind me saying so, is that it contains too

~ much of the terms of the Act and too little that is specitic.

It is just the way. it is usually done with other matters when

it possibly can be. When you have it so general that it

would ‘apply. to anything that conceivably could come urider.

athe -Act, and it is really just shaking your finger ai the de-

fendants for not having complied with it. That is what it ~

amounts to, Instead of -going into détails and saying what

. ; . you elaim by the eighth paragraph.. I think you better strike

_the ninth out and be done with it.

Mr. Reyman. All right, sir; I so move. ‘

The Covrtr. Motion granted. :

Mr. ReyMan. One other thing. With rebpect oto the pro-

ceedings our aménded complaint in Paragraph 2 alieges the

jurisdiction of this action is conferred upon: the Court by See-

tion 17 of the Act, and that af\pre‘trial we called the atten-

tion of thé Court to the denial and that was taken out, that

defense.

The imweltbk oaccie. there are two kinds of jurisdiction

matters, subject matters. You have to have a cotirt that

has competence to deal withthe subject :matter, and that

we have in Section’ 17. Second, you have to have jurisdic-

tion over the person. es

Mr. ReyMAx. That is true.

The Court. You could not sue dune people i in “San Fran-

“¢isco, probably.

le. ‘Reroaw. The ‘only point I was raising, your Honor,

- was that the general denial left standing after that is contrary

to Judge Knox’s decision at pretrial overruling | eS

The Court. Paragraph 2?

’ Mr. Reyman.°Yes, sir; of the arbended boniptaint.

The Court. I thought we had cleared that’ up. ‘But go on

«if there is anything else. :

Mr. “REYMAN. At this time we have served our amended

complaint, .and we have not as yet filed it. I should like

technically to file it before we proceed. ,

The Court. Yes; you should have done it.’ Do you mean

- it has not been filed at all?

- Mr. Reyman..It has not been filed with the Clerk.

The Court. Then the Clerk will take it. I have a copy of -

it? I suppose.

Mr. ReyMan. Yes, sir; you have.

The Coerr. Then the Clerk will see that that as filed. ,

Mr. Merritt. May I noW ask ‘a question, in the interest of

practical expediency? The Government has subpoenaed six ,

of our elevator men who are here today. That means some

embarrassment in the building: If it is consistent with the

Government’s position it would be a great help. if these men

were called and allowed to return to:their positions.

Mr. ReyMan. I had. assumed,-your’ Honor, that arrange-

‘ments had been worked out so there would be no inconvenience

or difficulty with the practical operation of thé building. °

_ Mr. Merritr. We were not consulted. -

Mr. Rozen. I consulted Mr. Clifton about that, and said

if it meant any embarrassment in running the building I

would be glad to ‘take it up and to satisfy their.convenience. _

Mr. Clifton: is associated with Mr. Merritt. -If he had told

"us theregyas to-be any embarrassment we would reétify it.

The Court. There is no.reason you should not get: through

with thein right away, and they should not take much time. -

Chainiiees Wastitnctox SILV ERA, called as a witness on behalf

of the plaintiff, being first duly sworn, testified as follows:

Direct examination by Mr. Rozen:

Q. Where do you live, Mr. Silvera?—A. 190 Richmond

- Street, Brooklyn.

. Where are you employed 2A, 463 Seventh Avenue.

Q. The building known as the Arsenal Building?—A, Arse-

‘nal Building.

Q. New Y ork City?—A. That is right.

_ @s

“—

o ° “ \

.Q.. What is your title there, Mr. Silvera?-—A. huaiibatt

superintendent and mechanic.

The Court. Where is 463 Seventh Avenue? Oo;

Q..Will you describe the location of the building, Mr:

Sily era?—A. The building is located at the northeast,gprner of

35th Street arid Seventh Avenue.

Q. Is that region of New York City : devoted to any particular —

industry or pursuit, Mr. Silvera?—A, It is known as the gar-

-ment district.. p

Q. Would you say that this building, the Arsénal. Building,

is located in the heart of the Garment c enter region?—A. [I ~

would think so. |

Q. Will you describe the physical appearance of the building,

Mr. Silvera?—A. The building 4ronts on Seventh Avenue, the

main entrance. It runs approximately 120 feet, I believe. The

southern face is on 35th Street and extends about 220 feet, I

imagine.

- Q. Are there entrances on both streets, Seventh Avenue

-and 35th Street2—A. There is‘a main entrance on Seventh ;

Avenup and a secondary entrance on 35th Street. Mae

Q. They both lead into the main hall?—A. They =

Q. On the’ ground floér?—A. They do.

Q. Is this a plar of the building as you know ‘it, - Sil-

miliar.

Mr. Rozen... think this will be conv sentient ‘B: the Court. -

The Court. What is,vour job there?

Mr. Rozen. He said “he was assistant. superiniendent and

mechanie. I want to offer this in evidence. It is a pamphlet

\ gotten out I believe by Spear & Company, and contains a de-

\ scription of the building, the floor plan, and so forth. :

‘\ Mr. Merritt. Is it offered for that purpose only?,

_ ‘Mr. Rozen. Whatever is contained in it. Mii 2

_Mr. Merritr. Then I will have to read it very carefully.

The Court. Mark it for identification. If he wants to ad-

mit it later he can. AH of these exhibits are usually marked for

identification: first, and th ven you can say “T show you this paper

marked feéx identification.”

(Marked “Plaintiff's Exhibit No. 1” for identification.)

Q: How long have you been employed i in the Arsenal Build-

ing?—A. Over six years.-

Q. Where were you employed prior to that?—A. Fmme- ;

_ diately prior I ‘Was, aboard ship as alr electrician for the. Grace

Line.

Q. Will you: describe for his Honor the general nature of

your duties, Mr. Silvera, please? —A. My general duties are

30 ; ‘ - oe

vera? [Hands paper to witness. acre Nes, this lodks fa- -

Pues Pie

- 31

~ to take care of anid mechanical ‘about the mee

all. minor repairs. .

The Court. Aré you what is called a handyman?

. The W ITNES§. That i is right. °

~ Q. Do ‘you do any electrical work, Mr. Silyera?—A. On

sammaiaas I do. Whenever I am ordered by the superin-

tendent, and outside of that I maintain the. elevators, look

over the switchboards, renew contacts and brushes, and ‘make =

adjustments, and so on; clean up the commutators, and

. everything pertaining to Seneens the. machinery in me

building.

-. The Court. Are the clev ators run by electricity? ;

. The Wrrness. They are.

Q. Where. does the electric: current’ come ioc that sup- .

plies the elevators?—A. The main servi¢e comes in on 35th

Street, into the basement, to a main switchboard room known

. asthe Edisop room in the building. +

Q. And you keep: that system in repair, do youR—A. I.

have ta go dewn 7 and put in fuses and so on when

they blow out. -’

-- The Court. But-J’can do that myself. tao ae 8

The Witness. Make minor repairs, as far. as ‘that goes.

The Courf. I supposé you do not do the actual— .

The Witness. Construction- work?

The Court. Construction work. ,

The Wirness: Yes; I have done qu ite a lot’ of it.

-Q. Do you repair broken wires in the building?—A. Yes. .

Q. You also.maintain ‘and repair the elevator motors?—

A. I do. Renew the armatures when anything happens to

them, when. they are burned out; remove them and put in

a oy or send it out to be repaired.

s What other work do you do in saiuhitiials with the

Pr thike, ?—A. I maititain’ the cars as far. as operation of

doors, gates, and door checks on the doors, on the _passenger

cars and freight cars er service cars, both.

Q. Is it a daily part of § your work to look after the arma-

tures?—A. Oh, yes; that is one of the first things we do

every morning, to look over the switchboards and motors” .

and see that adjustments are in fairly good condition. Some-

times we catch one where there is a badly burned contact °

and renew it immediately, or an adjustment of a.valve or some-

thing of that kind,.or the carbon burned out. It has to be -

— up'to make a special contact, and things like that.

Q. How many passenger elevators are there i in the build-.

‘ing? ?—A. Five.

Q. How many-freight clevatorg?—A. Four.

‘it is distributed to the. te

Moe

Q. You have to work on the’generators of the elevators

from time to time?—A. We have two small motor generator:

sets for the signal syste , low-voltage, producing about 16

Volts, for the operation of: the signals.

i Q. + Do you work: on them and maintain these generators?—

I do

. Q. What about the general electrical system in the build-

ing; do you repair that and ke? that in mainteriance?—A.

Ido. I have to do electrical ¥ork throughout ‘the building

on various occasions, as I am ordered by the superintendent.

Q. The building gets its electricity where?—A. From the

basement switchboard room. It goes up through the build-

ing on the east-and west side, through what are known as

risers, to panel boxes on the east and west side. From there

yants and halls and various parts -

the building.

Q. Does the landlord sub-meter electricity. to the tenants?—

A. We have a concern, a meter corporation, takes care of the

meters there. | ;

Q. They read the meiers, you mean?—A: _Fhey take :the

readings, with the exception of a tenant.removal-or a tenant —

has not paid his rent or something of that sort. Then we

shut the current off. The superintendent ‘takes a. reading of

that and keeps a record.

Q. But the current is sold by the Arsenal’ Building Corpo-

ration ot Spear & Company to the tenants?—A. The actual .

sale, yes; but I know that the metering is done by this meter

corporation. They install the meters and take the readings.

I belgie they even make out the bills and bill them through

Speaf& Company. I belieye that is the way it is done.

The Court. Aren’t they just representatives of the electric

company that furnishes the power?

The Wrrness. No, sir. Do you mean the Edison Company?

The Court. Yes.

. The Witness. No, sir.

The Court. Who are they; where do they ¢ come from? ©

‘The Witness. They represent the agents or the owners, I

believe. .. :

The Coury. They just check these things? -

The Writes. ‘They. take care of the meter jeatling and

billing, and so on.

Q. They take the reading so Spear & Company or the Ar-

sedial Building Corporation knows how much to bill the ten-

ant thonthly; is that correct?— A. That is the way I know

it to be operated,

The Court, They call them sub-meters, don’t they?

Mr. Rozen. Yes, your Honor.

Q. And do you also keep this general electrical wii in

repair?—A. As far as fuses or blowing out or _anything of

that kind, or short circujts, minor -short circuits, renewing . °

them, and the sockets throughout the halls, the lights not -

operating properly, and switches. “I take care of that, yes.

Q. Do- you also do Ppluthbing aie in the building, ‘Mr. '

Silvera?—A. I do. -

Q. Wiil you describe ndiad of ‘the: work you. do-in connec: :

tion with your plumbing duties and the facilities that you

work on?—A. I maintain all the flushometers throughout the

building, that operate for the sanitary. purpose of the toilets,

and the wash basins, slop sinks, ‘faucets; leaks; keep washers,

renewed, occasionally renew worn faucets, broken’ pipes , here.

and there. Minor repairs, small jobs.:

Q. The building furnishes water to the tenants, does it?—

‘A. Well, in-some cases. . I believe soine of them are metered

for their water. I do not know just how that operates exactly -

in detail. Then in some cases they get.their water from-

the slops, and the. water lies in the slop. sinks; they run it

in for small steam boilers and things like that. ie

‘-Q. The water furnished to the water tank system and pres-

sure tank system is maintained by the Calling; -is that S0?—

A. That is right. be cost

Q. When you say metered do you or do you not. mean”

+ that some of the tenants pay for their water. directly to the

landlord?—A. I believe like the barbershop, he has meters |

on his water supply, and similar-instances like: that.

Q. But all the water goes through the water supply system: :

- erected and maintained by the: ‘building; is that true2—A.

That is right.. That is right. -

Q. Will you describe the water system in ‘this’ building,

Mr. Silvera?—A. The water main enters.on 35th Street and

goes down into the boiler room proper, and at the entrance

‘to the boiler room on the right-hand side’ are humerous

meters, and valves controlling. the supply, and as you pass

these valves going into. the boiler room ‘proper you come toa

suction tank.

Q. Never mind the details of that. Is there a water. tank

on the roof?—A. Oh, yes.

Q. Hew many are there?—A. There are altogether four .

* tanks up there, containing water, one known as the sanitary

tank—— ©

Q. What. is that used for?—A. ‘That is used for drinking

‘water.

401225—41 ——3

Q. The building furnishes drinking water to the tenante?=—

A. Well, no; they supply the water, yes; that goes into the

coolers, but the tenants supply their own coolers where. they

... have them, as I understand it.

_ Q. The other tanks are used for what: purpose?_A? “One

is known as the gravity tank, used to operate the sprinklers

‘and standpipe lines and sq on below the 11th floor. Above

the 11th floor there are two tanks known as pressure tanks —

which operate from the automatic sprinkler... They are kept

at 80 pounds pressure, with 9,000 gallons’of water in them.

The Court. That is merely for fire prevention?

The Witness. That is right.

Q. Do you maintain and repair these tanks?—A. I do not

do any more than’ keeping t em at proper level of. water

and air pressure,

Q. You check them to see they, have the proper water

level and air pressure; is that it?—A. Occasionally pack a

valve for a leak, where there is little packing, ‘take care’ of.

- the commutators and compressors, put in valves and keep

them up, to keep the air pressure at the proper pressure. |

Q. Is the sprinkler system connected up with this gravity:

tank you mentioned?—A. The sprinkler system below the —

lfth floor... .

Q. Is there a sprinkler system throughout the building?—

A. Throughout the entire building. _

Q. Will you describe in detail. the appearance and extent

of the sprinkler system?—A. The sprinkler system is main-

tained by the automatic sprinkler people; I believe it is a

Canal Street phone number. They have that hanging up

there. And-if one of these heads go off where there happens

to be a fire, it creates temperature sufficient to let tat head

onthe C it as— :

The Court. Thermostatic control?

‘The Witness. It is a thermostatic piece of metal there that

melts and this head opens and puts out the fire. Due to.the

head opening there is a water flow created which operates the

water w mechanisin that. signals the automatic sprinkler

Q. ‘ this sprinkler system throughout the building in all

the premises of ‘all the tenants in the building?—A. Through

the entire building.

Q. Do you keep that i in repair?—A. To the extent that when °

there is a fire we stop down the supply line to the head that i is

gone and renew tle heads, and so forth, and open it up again .’

when the fire is out.

—Q. You do renew a head?—A. Oh, yes.

35 .

1 E.. 3- Exclusive of fires, do they ever “get out of fepair?—A. The

? e =

. Q. Yes—A. No. We never had one that I know of since

I have been there. ’

The Court. It is a = serious matter for a building : if a

thing like that happens, I should suppose. ‘

Q. Do-any of'the sprinkler-system pipes leak occasionally ?—

A. Yes; we have had occasional slight leaks and I have gone

in and taken up on the bolts ap the valve heads and the like of

that stopped it.

* . Q. Fhen outside of this eee te that you refer to as-

maintaining the sprinkler system, you'do not mean that they

come in and physically repair it, do you?—A, Yes; they do.,

I don't know how the arratigement is made as far as the agree-

ment’we have, because onee there is an alteration takes place,

there is a law as regards the spacing of. these heads. I believe

it is five feet from a wall there must be one and then ,ten foot

apart. There cannot be more than that in a room, arid so-

forth, and if they strike new walls, @nd so on, they have to

alter the position of those heads, and those people come in

and do that.

Q: But the daily routine types of taking care of ‘the sprinkler

system and repairing léaks and the various other activities con-

nected with it are performed*by you; are they?”

Mr. Merritt. Now, don’t.

The Court. That is a very leading question. and acttially

would not mean a thing to me. I understand what he does.

He is a handyman; he does little odds and ends, and if some-

body finds a weepin, ‘ivet or something like that he gets hitn

to come up-and straighten it out. I don’t see any use going .

into all this in such detail. |

Q. Where were these flushometers and wash. basins you re-

“ferred to located ?-A..- There are two toilets east and two west;

one men’s room and one ladies’ room.

Q. On each floor?—A. On each typical floor from, T would

say, the second to the 21st floor, which are practical typical with -

the exception of setbacks, and so forth.

The Court. You have’ not yet said how many floors this

building has. —;

The Wirness. It is ebm as-a 22-story building.

The Court. You mean you know it as a 22-story building, .

if it has only four stories. How many stories has it got?

The Witness. It has 22, and above the 22nd floor roof are

the penthouses, and so forth, and we do not count those as

floors. They contain the elevator machinery, and-so forth.

4 ad : . . ‘ é

Are there. any lavatories located in the premises of the .

Fon dec ”—A. Oh; yes; ‘where there are private floors they

vas the entire use of the toilets arid they are private to those

oors. ‘

Q. oe oa keep those i in repair and maairftain them, too?—

A. I do

_ Q. What about the” ‘radiators located inside of the tenants’

premises?—A. I have to take care of them, stiff valves, and

so forth. I shut off the steam fromthe basement and re-

move bubbles and repack them with graphite.packing, oil, 2

re so forth, that make _ operate easier, and replace

them.

Q. Who su oplies the heat to the tenants?—A. The build-

ing supplies.the heat.

Q. And there is a fireman employed by the building that’

takes caré of the heating?—A. Yes; we have’a firemam

Q. Where do the tenants get their water for manufacturing

- purposes?—A. Well, they make conyections from the east

and west lines, ag required, and nun them into their lofts.

__ In cases where they are not brivatédofts they run them across

the hall into the premises to the small boilers they require

for pressing, and soon, *- ©

Q. Do-you da'special ‘work on the elevator owned or con-

trolled by Max Wiesen?—A. Yes; I do.

_ Q. Will you describe that elevator for us?—A. I have CON )

in there to renew for them and clean off contacts.

The Covurr. I do not-understand that.

Mr. wage I de ot, either. You

Rozen.

what ~ » Say. " What is it you ‘want to ask h

Will you deseribe the elevator that runs’ between the

17th and 21st floors?—A. There is a privately installed cleva-

tor. It is privately owned. It is owned by Max Wiesen

Company and runs ffom the 17th to the 20th floor with

openings on each floor. It is operated either manually or

automatically. They have a man there most times through-

out the weekyduring the day atid when this man goes to dinner

or anything like that they put in a little switch ‘that causes

it to be operated automatically,

The Court. That is just between two floors, is it?

The Witness. Four floors. ’

Q). Are any other tenants jw-the building permitted to use |

that elevator?—A. No; no other tenants use that elevator.

That is controlled by Max Wi lesen C ompany. *

= .

. ‘ °

; 4S . ¢ |

. 4

- :

. aie

Q. This Max Wiesen occupies ‘the entire floor space, does

he?—A. He occupies’ the 17th, ‘18th, 19th, 20th, and 2ist

floors, and half of the 15th.

Q. What floor does the dienes run ek: Between 17

and 20.

Q. Do you do any work on that elevator, Mi. Silvera?—

A. Yes; Ido. I have sent men there quite often to see what —

ig Wrong and to put in fuses, and sq forth. !

Q. Have you g¢ver done any work on the windows or

latches?—A. Yes; that is part of my work, to maintain the

windows; and if a chain breaks to renew the chain on the

pipes aud repair latches, and so forth.

Q.-If the windows get stuck are you called in to help or

not?—-A. We have to go over them practically every time a

‘ painter goes in the place. They become so stuck up you can-

not move them with a jack. You have to ease up the cracks

by putting in wedges, and so on, and grease them.

Q. What work do you do, if-any, with respect to ‘electrical

fixtures located ‘in the premises of the tenants?—A. Well, if

they have a fuse blown out and minor troubles, and so forth,

something that can be fixed in a hurry, to help them out, to

put in a socket or switch or repair a little*plug on a cufting

machine or something of that kind,.those kind of jobs.

- Q. You mean by that that you do minor.repairing work on

the actual manufacturing machines? © >

Mr. Merritt. Just a minute. I think we are leading again.

The Court. Yes. - That does net make* any difference

whether he does or n@t. What. else do’ you do? What sort

of machines have they got? *

The Witness. Cutting machines.

The Court. And electric sewing machines? © -

The WITNESS. Sewing machines, pressing irons.

By the Court: ;

Q. And if those electric fixtures ave a little” something

“a

done to them, I suppose as handyman in charge of the huild- ,

infg, so to speak, you are called on, and some of your assistants,”

too, is that it?—A. I hawe one assistant, but he #——

Q. What is his name?—A. He is mostly running errands,

Arthur Lipsman,

Q. L-i-p-s-m-a-n?—A. I believe that is the way he spellsit,_

By Mr. Rozen:

Q. Is there an. incinerator in ‘this building, Mr. Silvera?—

A. There is an incinerator in the building in the basement

which has been installed possibly within the past year.

ikset i

fog . ;

Q.. Do you have any duties in connection with that incin-

erator?—A. Well, there is nothing that I do there, on that

incinerator, no. I have not had any work there. I did NAVs a

to—— : Ace :

The Court. What is it’ for? What ‘is an incinerator for

there? To burn up the trash—

* _ The Wrirness. Rublsish in the building; dispose of rubbish.

I did have to repair a handrail there that was ngt solid, and |

cut a hole in the brick wall and bolt it to the brick wall and

make it rigid, .25~i .

Q. In addition. to the four freight acoakinn. Mr. Silvera,

what other facilities are there for the distribution or move-

ment of packages in the building?—A. They have a package

chute which is used exclusively for the Railway Express Com-

pany, which was placed on the premises for their exclusive

Q. Will you describe that package chute; please?—A. Well,

the package’ chute has a door on each, floor, with an opening

_ approximately 3 by 3, or I would say no more than that, :

- I do not think, and this chute has a spiral affair of metal and

“you justdrop the packages in and they go down to what

_ is known as the mezzanine, part of which the Railway Ex-

press has fof their extlusive use, and then they have a drive-

way in connection with this mezzanine where they back their

truck in and the packages come down the chute and then °-

they have a roller affair and they put these packages on and

they go down this roller affair-to a chute to the trucks, and .

they are loaded in the trucks there. — -

‘ Q. Are the trucks parked-on the street 2A. No; they back

right into what is known as the ee Express driveway

on 35th Street. ~

. Q. Is that a‘sort of structure within ‘the building itstthh?—

A: Oh, yes; it is part of the building.

Q. Won't you deSesibe it more carefully for the Court?—

A. It is a driveway with a large straight drop door.

po That is flush with the building wall?—A. That is it. -

. “~ Q. And the trucks back insigle?—A. Back right inside toa

loading platform.

By the Court: d | :

_Q. They raise this door?—A. On a chain. ©

* Q Yes. Wg have. one down in the building: here for'the.

judges. They raise this curtain or whatever you call it—— :

& A. Yes; a steel eurtain. re

Q. And then the trucks can, back in or driv evin or what not,

' pick up’their loads?—A. That is it.

oO .

Q. So you. have this chute that goes down spirally, .

understand it, is that right?—A. That is right.

Q' And of coursé that will be the only safe way to keep om

perhaps setting some of the packages:on fire, as they did yp in

the Medical Cénter when they first began because the spiral

_lets these packages down gradually—-A. Yes, All the doors are

: _ maintained with lock and key by the Railway Express Com-

pany. If they want to use the chute on the — floor they

. open it and then lock it as they finish. =.

* By Mr. Rozen:

Q. You mean the American Express Company only has ©

keys?—A. That is it. It is entirely private.

' Q. Do you do any work at all in coiinection with that

chute?—A. I have occasionally tried to help repair a-lock or

something of that kind, but otherwi ise I have not done “a

on it. :

By the Court:

Q. Are you around there when the American Railway Ex-

press is getting packages?—A. I am around the building at all,

times. I have to let.them know at all times just where I am, in®

case of emergencies, and so forth.

Q. Do you ®now just exactly what happens, so far as the_

Railway Express Company is concerned? Does somebody

from thg-Railway Express Company go up to the floor whence .

the packages are going to be sent down by the spiralt—A. That

is right. a

Q. And they unlock the doors themselves, which dita look

like dumbwaiter doors or something like that? ;

Mr. Rozen. Exactly what ~_. look like, your Honor;

dumbwaiter doors,

A. That is it. joe ene

Q. I am just guessin at it. And ‘dheni:they put their pack-

ages on/the inclined. spiral and: the packages work their way

down eventually to the place where the Railway Express truck .

is waiting to’ takethem on board, is that it?—A. They come

down and out of the bottom of the chute on the mezzanine onto

a sortgf platform, and thére is a man there that picks them up

andghecks them over and puts them on a roller affair and they ,.

go onto the truck.

Q. Is that all done by Railway Express employees?—A.

Railway Express employees.

By Mr. Rozen:

Q. Do you know.at what point.the Railway Siiseeen man

_» picks up the packages that he puts in the chute?—A. Hepitks -

them up from the premises of the tenants.

° 7.

ea) |

-Q. Who supplies light to the. premises Ree by the Rail

way Express Company?—A. The building.

Q. And heat?—A, The building. ;

Q. In addition to the facilities furnished the Railway Ex.

press Company, aré there any other facilities or space

nished the Railway Express?—A. Only what I. have fen.

tioned, ‘I believe :

The Court. W' hat j is the’ proper word to describe that place

down below where the Railway Express backs its truck in?

The Witness. A driveway, I would call it, a driveway and

loading platforrna.

Q. Do they. also have office space in the building, the Rail- .

way, Express?—A. The office space and everything are incor-

. porated on the mezzanine where the packages come out. They

(ath. a couple of desks there to make their records, and so

ort

Q. Have you ever seen the Railway Express C ‘ompany offi-

, cials located in any other part of the building? I do not mean

_ when they make their rounds, but I mean permanently hav-

ving been there for part of a day?—A. No, Ido not think so,

except that they go into a big tenant’ s place and stay there

quite a while, like Max Wiesen’s. They are there a couple

of hours, if that is what you méan, but that is the only in-

stance where they are in any one location any great length

of: time. .

Q. Will you describe tht freight elevator ent nee on the

street level, please?—A. The freight elevator en entralice is on

35th Street, the main entrance.

Q. About how wide is it?—A. The main opening is, | would

judge, about 12 feet or something like that.

Q. is ‘there a steel curtain there, too?—A. There are two-

immense doors that swing outwardly, immense heavy doors.

Q. And-how ‘deep is thit entrance there, about?—A. Oh, .

40 or 50 feet; dam only. guessing at its length, but it is quite

- a big's : gayle hallway in there. You go straight in and then

. aroun

to the left where the elevators face, What I mean

by straight in is it would be like walking north from 35th

Street into the building.

By The Covar:

Q. What do the freight elevators move? These siti ion

that are sent down to the spiral?—A. What do they move?

Q. What do the freight elevators carry up and down and

how'do they get that; say a person who is._bringing something

to the building, for instance?—A. They come in this main

freight entranfe and walk straight in and then turn to the

| ae and the’ einai entrances are. slits in the main freight

Q. As I understand it, and perhaps I am n quite wrong on it,

_ the outgoing shipments are taken by the American Express,

_ are they? Is that right, as-a rule?—A. Not all of them.

They have numerous express companies that come in there and -

pick up-packages.

_ Q. But some express’company or other takes them off “the: _

spiral? In other words, does somebody also come in and take

them off the freight elevators?—A. Oh; yes..

Q. And going out, too?—A. Only what the Railw ay Express

Pn! Company handles comes off the spiral.

Q. Everything else ‘comes off the freight elevators? —A.

Freight elevators.

Q. And everything that is going up, of course, I supe kes

to go in the freight elevators?—A. That i is it,

: By Mr. Rozen:

Q. Do any other companies besitles the American Railway

‘Express Compény use the spiral chutes?—A. Nohody else. It.

is exclusive.

The Covrr. They have the keys toit. He justtold us that.

af »

‘

Q. Were you employed by the Arsenal Building during the © °

period of the maintenance employees’ strike?—A. I was there

during the period of one ofthe strikes, and I started thege J just

prior to the first strike that was called.

Q. -When was this, Mr. Silvera?—A. In the latter part of.

1934 I think it was.

The Court. The last.strike?

The Witness: That was the first one. ;

Q. And was there another strike, Mr. Silvera?—A. There

was another one. I do not know the date of it, but a couple -

years ago it must have been.

The Court. The second one was worse than ‘the first, if T»

recollect right? 7

The Witness. Yes.

Q.- Were the employees in the Arsenal: Building out on bith”

of the strikes you refer t%?—A. Yes; they were.

Q. Were the elevators running during that strike?—A, Not.

to any extent that I know of unless somebody ran them that

I did not know of. The operators were all out. -

Q. Was there any. cheat in the building during the ine |

A. Not as I have been given to understand. The boilers were —

shut down.

Q. Were the tenants produeing at that time?—A. What they

could manage to do. Some of them would walk up and see

_ whateyer they sala do. They did not do much though, I do

not think.

' _Q. Were there other employees hired to operate the elevators

during the strikes?7—A. No; there were no operators hired

- They had watchmen, though, is all I know of. !

Q. Were the. elevators running or were they not?

Mr. Merritt. He:said they were not, to any extent.

’ The Court. He said he did not know..-

The Witness. They were not running to my knowledge.

Mr. Rozen. Your Hofior said he testified he did not know:

“and Mr. Merritt said he testified they were not running.

Mr. Merritt. They were not: running to ay extent, but he

— did not know.

The Court. That is what I thought he said. If they were. ;

running it was not within his knowledge. . .

Q. What would you say was the effect of the strike upon ‘the :

tenants in.the building? —.. ; ;

Mr. Merritt. Oh, I object to that.

The Court. Objection sustained.

Q. Were the tenants open for business, Mr 9 pg Oh,

‘ yes; they all came and tried to get by as ey could. .

Thé Court. Anybedy who lives in an apartment house in

New York City knows exactly what it is like. I live i in an apart-

ment house myself. **

Q. Mr. Silvera, did you make a record of your daily duties :

in, and about the building?—A. I wasrequired to make a daily

report to the superintendent. He said his office wahted that

and I did that.

Mr. Rozen. Do you have such a book: Mr, Merritt?

Mr. Merrit. It is the first I have heard of it.

The Covet. That i is a sort of a log?

Mr. Rozen. That is exactly what they call it, yee Honor.

That is the exact term. ,

‘The Court. What good would that do us?, :

Mr. Rozen, Just so your Honor. could see’ the exact: t- details

of his duties and so I would not have to, go jnto-it any more

than I-have.. I would ‘like to offer it.in evidence as showing

exactly what this man-did. — 7 og

The Court. I think he has told us.all that. I live in an

apartment house and I know handymen and I have known them

all my life and I “know the sort of things they do and I do

not. nged to be told about that just because it happens to be a»

loft building. There gre certain things that everybody knows.

Mr. Rozen. I know, but we are trying to make a yecdtd of

those things. o° reserve the offer at this time.

43 Peeler! SS. .

. Q. Is there any other ‘ieneies in the building ‘that you .

“have not described to us, Mr. Silvera, that. acts as a.watch-

man?—A. They have an electric, what i is known as an ‘elec-

trice—_— > F

The Court. Electric eye? .

A: (Continuing.) Electric’ eyg and 6n the two stairways ii in

the building. I maintain that. :

Mr. Rozen. That is all T have, ‘I’ think, your Honor.

(Short recess.)

Cross-examination, by Mr. diate

Q. Isn’t it true as a general proposition that the employ ees |

of the Arsenal Building have nothing to do with the mainte-

nance of the machinery of its manufacturing tenants?—A.

Well, in my position, my work is to follow out the orders of

the superintendent and that has involved me in doing some

work in the tenant’s premises, considerable work at times.

Q. annot you say as,a general proposition it is not part. a Ea

of your-duties to maintain the machinery in the tenants’s prem-

-ises?—A. I cannot. -

Q. Are you tenet’ to testify it is one of your regular duties

to take care of the machinery of. the tenants in their respective

- manufacturing premises?—A. Iam.. My duty is to follow out

the orders and instructions of the superintendent. ‘

Q. And it is part of your regular duties, is it, as you are in-

structed, to enter these tenants’ premises and to look to the

weep of their machinery?—A. As I amvinstructed, that ba

right

Q..Aid you are constantly instructed that way, are you?

The Court. You must get asked in. You don’t enter the

premises without being sent for, do you? :

ThesWitngss. The superintendent gives me orders to do

such and such a thing and I go and do it. -

The Court. I. don’t blame you for doing ‘what the super-

_ intendent says, but what I want. to get at is the tenants send

through the superintendent for you, is that the idea? °

The Wirness. In many cases and not in many cases.

’Q. And you never enter the teriant’s premises to do anvthing

except on the direction of the superintendent?—A. No. I did

enter the premises on many occesions when I was not given

orders, if they came to ask me—I have been given orders ver-

baliy and written also, in many ‘cases, and the operators and

so forth tell me, well, there is 4 leak in such and such a place,

‘and I haye to goin and take care of it:

Q: Who do fou mean by the ienahorstck The elevator

operators. The superintendent will go up and say, “Tell

44 \

George to go in and see what is wrong in ‘such and stich a place,”

_ orders ‘similar to that..

Q. That is an order from the, cuperintendent, isn’t it?—

i A. That is right.

Q. I dm asking, you if you have ever gone in to hepaié: ma-

chinery i in the tenant’s premises used for their own manufac-

turing premises, except when you were’ requested 80 \to do

b the superintendent?—A. Yes, I have.

-:Don’t you know that is a violation of the rules and Yeg--

ulations of ‘the building?—A. No; I-do not think it'is. ,.

Q. You do not know that?—A. No; I do not’ think itis. « v.

- Q, Isn’t-it a-fact that’ there is a notice published » in the».

locker room forbidding you to do that?—A, ‘I don’t think

there is. ay ‘

- Q. You have never seen such a notice?—A. What locker

room are you referring to?

Q. In this ‘building?—A. My locker room. is in ‘private

: quarters.

Q. In any, locker room of this building are you prepared

to say there is no notice of that kinf?—A. I have not b any-

thing i in my locker room to that effect.

Q. Have you ever seen anything in any locker. room in this

building. to that effect?—A. I believe some time ago {there

was—now you recall it to my mind—there was séme kind of

notice of that type put up.

Q. And it is still there?—A. Probably is; I do-not know.”

Q. And it has been: there a great Many years, hasn’t. it?—

-A. A great many years?

' Q¢¥es.—A: Not a great many:

Q. It has been: there ever since you have been. there, hagn't

it?—A. No. \

Q. W ey Seas it put in?—A. Within the last couple years.

Q. Then rou do recall now that it has been there about two

years?—A. Probably.

Q. So when you enter those} premises aia you work with- °

aut directions from the superintendent, you are violating that

notice and regulation, are you not?—A. Absolutely; yes

Q. Why did it take you so long té admit that. fact?—A.

Because I did ‘not recall. at the. time you first mentioned hav-

ing seen that notice put up there.

'Q. And you did not recall that you were ‘constantly violat-

ing the rules of your‘employer in this matter?—A. If I had

not taken care of those difficulties—I had to rely on my own

knowledge of the requirements of taking care of those diffi-

culties, because I was in charge of that when a

intendent was’ off on shits vacation. That notes: edid not apply

to me in its entirety.

Q.:Give' me an illustration of the type of difficulty you

-inean?—A. Well, if the tenant happened to have the lights

out and so forth; fuses blown.”

Q. Don't you know my question related to your sisibiaibine

their machinery ? That is the question I’ was asking you

about. —A. Well, their machinery? Maintaining their, machin-

ery is maintaining the source of current supply, and.se forth,

also. I think.

. Iam rot talking about: ibaieninis

The Court. He is not talking about that. You answer his °

quest ions.

Q. You*have testified at. as regular part. of your duties st

you entered the tenants’ premises.from time to time to repair

and maintain their ‘machinery uséd‘ for manufacturing pur- .

poses,didn’t you? Didn’t you so testify?—A. Yes; as regards

: fight sockets, fuses, and so forth, and: seg things of Sat

kind; yes. »

taining thefr machinery?—A. As a duty, you méan?

Q. Eithey as a duty or not as a duty.

By the Court:

Q:.° Under any eircumstances—A. On occasions I did; yes.

_ Q. And what sort of repairs do you mean when you are talk- ¢

ing about that?,’ Let us get down to actualities. I cannot think .

of these things ji in theories. Let. us get at the facts.—A. I re-

pair things for the tenants.

_.Q. Sewing machines?—A, Well——

_ @.- Pressing machines?—A. Well, those things were not dorie :

in the actual line of my duty. At times I did a thing like

that ‘as a personal favor or ‘something of that kind.

Q. Do they pay you something?—A. Well, they did if they

felt inclined, or if I had experises involved they would allow

. ne for whatever expenses I had.

Q. Well; little extra-curriclar work, we will calL.it, that was .°

done by you for which you probably always hoped to and often

received, a gratuity, is {ifat it?—A. That is right to a great

extent.

By Mr. Merrirr:

Q: So that on the side and contrary, to your rules, you occa-

sionally did this sort of, thing for the purpose of nan a little

., extra froney?—A. sionally? Ok

Q-“And only occasionally ?- That i is right.

ahs | x

\ . 7 sd

Q. Did y fe éver go in for the purpose of repairirig or main- _

es ar 3 oo

» 46

'Q. You understand the difference, do you not, between en-

tering a tenant’s premises to take care of the building. and

_put- in sockets, for instance, for lighting, and entering the

tenant’s premises for the purpose of having to do with their,

own special business? You understand that difference, don’t

you2—A.. Yes; Ido. I think I do.

Q. And you quite frequently, as I take it, enter the premises °

on tenants’ request, or by direction of the superintendent, to

_ put = a light in a socket ?—A.- Oh, yes; and do othet extensive

wor

Q. Other extensive work?—A. That is right.

Q.. Tell us what the other.extensive work is?—A: Well, ee

‘have been giv en orders to install new feeders for elettric work :

The Cotrt. That is on orders of the siiperintendent?

The Witness. That is right. Ete

The Court. For ~which you were paid by the. building.

You were not paid by the tenant at all. It,was something

done in the line. of your, work under the superintendent.

' The Wrrness. That i isright. <=

~Q. What do you. mean by new feeders?—A. Well, Mr.

Schneck required some new feeders run for some machinery

he was installing when: he made some-recent changes on the

11th and 12th floors. He had alternating current put in for

soine neyw"machinerv and I had to run the feeders for that

from the hallway on the 1ith floor and put up the meter pans, .

- Q. When you ‘sayMfeeders, you mean wires? 2A. That is

right.

Q. Or cables from the main feeder wire on that floor of that —

_building?—A. From the ‘source of a in the freight hall

_ Into his machines.

Q. Or to the point where it was to. be connected up with

his machinery? ?2—A. That i is right.

- By the Courr

Q. I suppose you Sabin ali deanna, current there, hav en’t

you?—A. We have both... —

.Q. What is the masa source. of supply?—A. D. C.; direct

current. ;

Q: Then, of course, you wasila have to. have converters,

wouldn't you: for people who used alternating. eurrent?—A.

_No; we have both coming in from‘the street. They recently:

installed the alternating current in part of the building.

Rae

By Mr. Merritt:

"Q. This: particular job you are speaking of ‘lini you in-

stalled these meters, wasn’t that a special job where you were «

changing from a. c. tod. c.,ord.¢. toa.c.2—A. A special job? 3

Q. Yes.—A. I do not. know. I would- not determine it a

special job.

Q. Was it a job where you were changing from a. ¢. cur-

rent.or from d. ¢. to a. c.2—A. I think they were going to get

some new machines in or something of that kind. I don’t

know what they used the a. c. for. _ They are still working -

on it, I believe, even ‘now.

Q. But. you do know they wanted «a. ¢. current?—A. That |

_ is right.

Q. And'they were not then getting it?—A. That is right.

Q. So you -were installing these wires for the a. ec. current

so it could run into those anes, is. that right? —A. That

is right.

—Q. Who is your superisitendent?—A. -Mr. Joseph Berdiuand. :

Q. Has he been your superintendent during. the entire

period when — you have been in the maeing TA. That is

right. -

Q:. So dhenever you have jebervad to getting directions

from the superintendent you are referring to Mr. Ferdi-:

nand?—A. I am.

Q. Do I understand whenever the superintendent is present

‘in the building you do not undertake to enter a tenant’s prem-

ises except when you receive orders directly or indirectly from

him so todo?—A. Whenever he is in the building? »

Q. Yes.—A. No; there is many an, occasion that eae arte

from one of the tenant’s lofts might tell an operator, “There

_is a leak at so-and-so” and that I should go and see @hat it is,

- and figuring it might be bad I go down and take care of-it

and see what kind it is atid what it is all about, and he knows

_ at the end of the day I have done that because I put it in my

report. :

- Q. Wherever you have done anything of that kind it would

appear in your log?—A. -That is right, in the daily report. -

. °Q. Showing what-you have been doing during the day ?—

A: That is right.

By the Court: .°* rt ais

Q. You would not put in those cases where you went in and

did something at the tenant's request for which they gave you

a gratuity, you mean?—A, Personal affair, you mean?

a alee

: 48

Q. Yes.—A.. No.

The Court. I can understand that. =.

The Witness. Not as a general thing it would not be in

there.

By Mr. MeEnrritT: »

Q. You referred to this package chute which you say is the’

exclusive facility of the Railway Express ?—A. Yes, sir.

Q. Is that correct?—A. Yes, sir. |

Q. Only the Railway Express uses it?—A. Ves, -.:.:

Q. The Railway Express maintains it, does it not?—A. To

the best of my knowledge.

Q. The building has nothing to do with its maintenance so

far as you know?—A. No; so far as I know that is right.

Q. You have seen representatives of the Railway Express -

come in and do things tovit, haven't you?—A, Well, the only

point I have seen them doing anything to it, that man on the

immediate job, the-expressmen themselves, they try to fix the

locks when they are out of order, and so on.

Q. Does this chute serve every floor of the building?—A.

’ From the 21st to the mezzanine it operates.

- Q. But even in those floors from the 21st down is it not a

fact. that a very large quantity of the freight goes down in the

‘, elevators and is carried: away by truckmen?—A, Oh, a con-

siderable quantity. It goes in and gut through the elevators;

various truckmen go out with ariy raw material and it comes

‘back in dresses, and so on.

‘Q. And it is true, is it not, that these nmianufacturing tenants

hired a trucking contractor to come to the building and receive

the finished goods and cart them away?—A. That is right, I

believe. I believe that is right.

Q. And these truckmen so hired enter the | premises of the

tenant, take possession of the freight in the tenant's premises

and load it on to the, elevators?—-A. Yes, sir. ;

Q. And then it goes dowr: .in the elevators to the ground

floor; is that correct?—A. Yes, sir.

Q. And then when it reaches the ground floor it is unloaded

4 the employees of the trucking company ; is that true?—A.

es, sir.

Q. And is loaded by them onto the tricks? —A: Yes, sir.

Q. And then garted away by the employees of the trucking _

company on the trucks of the trucking con¥pany?—A.” Yes, sir.

The Coyrr. Who runs the elevators, the defendant's freight

elevators, in taking these things up and down?.

The W iTNEsS. The employees of the building. The oper /

ators employed by-—

The Court. The elevator operdiore? ‘

The Witness, That is right; the elevator operators: ;

Q. Well did you say there was-no heat in ts building dur-

ing the elevator strike or building service strike?—A. 1 was

given to understand the boilers were shut down.

The Court. Were you on strike yourself?

The Wirnes&s. Yes, sir. °

The Court. Then he does not know anything about it-” He

was out on strike.

Mr. Merritt. He testified that way, and I: = s wanted to.

be sure. * | Re

Q. You do not know whether there was any heat going °

through the building at that time?—A. Not definitely Only .

from hearsay.

Q. What is that?—A. Not definitely. Only from hearsay.

Q. Did you know that the Arsenal Building Corporation had °

a definite contract with the Automatic Sprinkling Company to

handle all servicing and installatiqn of the sprinklers?—A. I

believe they have, but I have. done some work on it, from time

to time. —

Q. And did you ‘know also that part of this wii of instal-

lation, or repair, rather, was done by the Manhattan Engi-,

neering Company, py outside corporation, contracted with for

that purpose?—A, I have heard thé name.mentioned around

through the building in that type of work. I think they do

some of it. .

Q. Primarily it is not a part of your dutien’ or the building

service employees to take care of the sprinkler systeth, is it?—

A. Yes; it is.

Q. To what extent?—A. To check up on the pressure and

water level on the gravity and coach tanks every morning, °:

and maintain the proper pressures and levels.

‘The Covrr. So that in case there is a fire there will be a

sufficient supply of water.

Mr. Merritt. Yes.

The Wirness. I have also had to shut bain at hake with

the assistance of the superintendent, winter lines, where the

_ cold water would be liable to freeze them up, on, the sprinkler

system, storage system, and so forth.

‘+ Q. So you do not have to do with the sprinkler sy stem for

the water people; is that correct?—A. As I stated. . %

Q. But you do not have to do with the sprinkler equipment

itself? The sprinkler equipment itself.—A. Well, to the extent

y 401226—41—4

fe . WH

of maintaining the pressure and packing valves up in the

. tanks, where the tanks are located on the roof, occasionally.

QRut only to that extent?—A. That is right.

Q. These toilets and sinks about’which you gave some testi- —

- mony a ilets and sinks in the public halls, are they not?—

A. Well, the floor or that part of the fldor in whieh those toilets —

and sinks are located is not rented by a tenant. Then it be-

comes private; it is closed off to that tenant. If-a tenant °

has an entire floor they become private tothe. fidor, that ten-

* ant.

. Q. But generally speaking these toilets and sinks are not

in the private premises of. the tenants, except svhere the ten-

ants occupy the entire floor?—A. I. do not know, as I would |

say, generally. It is a big percentage that is private. I do

not know exagtly what percentage.

But in these places where'the -toilets and washrooms are -

as you say private, they are treated in exactly the same way

as they are on the other floors where they are public, are they

not?—A. As far as J am concerned. —

Q. As far as you <now That is right. -

Q. You said some een the water boilers of the indi-

vidual tenants, 9.d gave the impression that you serviced

them. Is that so?—A. The water Phat, sir?,

Q. Water boilers. —A. No; I don’t service the water boilers.

No. ;

The Court. What aré the water boilers?

Mr. Merairt. It is an attachment used in connection with

- othe manufacture of the garments.’

«The Court. Did he say that he knew anything about that?

Mr. Merritt. I thought he did, and _— I ‘am wrong. I ;

noted it, though I may be mistaken.

The Court. I may be, too. I thought he said that he per-

+ haps helped connect {

The Witness. There ts only one occasion I can-recall that

I was sent to try to help a man was having some trouble with

‘his pressing boiler outfit. That is in Wiesen’s,

. a. The- building supplies heafto these tenants?—-A, That is ~

right. :

Q. It is part of your duties to keep the radiators in working

order?—A. Yes, sir.

Q. As to the electric current and the meter, is it not your

/ understanding that these meters are installed, serviced; and

j read by an outside metering contractor?—A. That is my under-

standing. e :

Gres bes

4 51

Q. And is it your inieateniins that the haeetloiad receives

these readings and then bills the tenant for the electrical cur-

rent he has used?—A. That is the way they bill it.

Q. Is it not a fact, Mr. Silvera, that all these manufacturifg

tenants maintain and employ mechanics who look after their‘

own machinery?—A. That they all employ them, you say?

There are only two concerns in fhe building that have their own

mechanics.

Q. Which are those?—A. Max Wiesen has a mechanic take

care of his sewing machines and does general work around, and’

. Schneck has one.

. And'the others where there is anything serious happens to

the machines send outside for the repair men?—A. In the great

* majority of the ¢ases. —

Mr. Mekeirtr. That is all, Mr. Silv ve |

. Mr. Rozen. I have just two questions, your Honor.

Redirect examination by Mr. Rozen:

Q. Mr. Silvera, did you ever do any work on the locks of the

doors that his Honor so aptly described # dumbwaiter doors in

appearance, of the spiral chute?—-A. Yes; Ihave tried to help

as I stated before, to make repairs on them andsoon. °

- Q. The other question is, have you ever entered any of the |

premises of tenants to repair flange bolts on the sprinkler sys-

tem?—A. Yes; we tightened up some bolts in Mr. Schneck’s

premises, and also the Atlas Company, there was a drip over

- the basin and I took up on that and stopped those leaks. -

The Court. Those were just ad ‘interim repairs. Perhaps

you would know what I meant. What you have been describ-

‘ ing is just something that is done between the calls or work

of the people who have charge of the sprinkler system, I do

‘not know what the concern,is called, this outside contern

that has charge of the sprinkler system, but they cannot have

people. there all the time and you have to occasionally do.

something in tying. up 4 bolt or stopping a weeping rivet,

doing something or ‘other S0 as to keep the thing tight ‘untill

. the next time they come around. Isn*t that it?

The Witness. That is right.

The Court. I think I understand it, thoroughly.»

Q). But thése slight repairs that you make on the sprinkler

system, are they done at the request of the tenant?—A. Well.

they report a leak, as I recal!, to the superintendent, in Mr.

Schneck’s case, and he went there with me and we tightened»

g fs

case. The one down in the print shop I was told about, and

I told the chief about it and he told me to go up and [ went

up and did it. ;

Q. In respect to the windows for example, or the radiators,

-is that all done?—A. Yes.

Q. At whose request 2A. The a: in most

cases—the majority of the cases. é

Q. Where does the spy atenient, if you know, get the -

request?

Mr, Merrirr. Of céurse, he does not know. I objéct to the -

question.

' The Court. He could not say unless he heard the request

made. .

Mr. Rozen. He reports up there, your Honor, and probably

the tenant says “I have beén after the superintendent for

days” or “after you for days to fix this.”

Mr. Merritt. That would not be proof. -

The Court. No.

Q. Do the tenants ever request you directly, Mr. Silvera,

to do, these jobs?—A.” On occasions. Oh, yes; they do. and

I report it to the chief # a general rule. Sometimes ‘ sends

in an assistant to relieve—a window or something of that kind

if | am too busy to get in ard do those things. The tvork i¢”

dene in that’ fashion, and I get orders to do it. If he is not

: busy 1 et him do it, and if I get achanceI doit.

Mr. Rozen. This may be leading, your Honor, but I find

it difficult to suggest it in any other way. ¢

* Mr. -Merritr. Then do not ask it. .

Mr. Rozen. If it is F will withdraw it.) ”

The Court. It would be a conclusion.of law. Have you

got-a eontract, a personal contract, saying what your. duties’

. are, or are you just orally engaged by the superjntendent? .

- The Wrrness. That is all; engaged by the superintendent

oral] Me, a.

Rozen. Whag.I mean, your Honor, # that there are |

many jobs he performs in the building there more or tess in .j

the scope of say? winavi In the past he has’done them, .

-and he. knows the superintendent would not object to his *

doing them again. wy .

‘The Witness. That is corre

The Covrr. Wait, he is talking to me.

Mr. Rozen. So a tenant would make a request directly to

him and he weuld go ahead and do.it without even talking

to the’ superintendent or getting the superintendent’ s O. K.

~ The, Witness.‘Surely.

%»

The Court. He is still talking to me.

Mr. Rozen. The point ‘is he does do these things at the

réquest of the tenants in the normal routine of his job day in

and day out. There are a lot of little jobs, but looking at

them en masse you can say he devotes all his time to them,

The Court. He shia all his time to jobs around the

business. _ . ’

Mr. Rozen. But Lam talking about requests of the tenants.

: Checking the wafer tanks, checking the generators or repair-

’.. ing the elevafors. But there are certain jobs come to him,

and he hag to repair because of, the tenants’ complaints or

Sour. In all of these things there is a lot of give and

take, and there is no great line of demarcation. You could

"not run a building if you had to try a lawsuit before you

‘had someone go upstairs and shut off a valve. You have

to have articulation, a littJe movement, in life. - You: can-

not possibly. have all things cut and dried. I should think -

that went without saying. He has already testified what ‘he

‘did. Ida not think it is necessary to go into it any more.

Mr. Rozen. That is all for my side, your Honor.

ARTHUR LIPsMAN, called dis a witness on behalf of the plain-

bi first duly sworn, testified as follows: ee

Direct examination by Mr. Rozen:

Q. Are you employed in the Arsenal Building?—A. Yes,

sir.

Q. How long have you’ been employed there?—A. Well,

off.and on about 14 years.

Q. In what capacity are you presentey ee

Porter. ,

Q..Porter2—A. That is right.

Q. Will you tell the Court what your duties are, please?—

A. Well, I go through the building and clean up, help the

other. porters clean up, help George Silvera, the assistant

superintendent, in various jobs.

Q. What portions of the building do you ‘clean?—A. Well,

_ wherever there is an empty Joft or other Ahings to do, I jump

in and help.

Q. Do you clean ‘the-freight elev hall?—A. Well, yes.

Q. Do’ you clean the passenger levator Hall?—A. Well,

occasionally, yes.

Q. And any specific floors all throughout the building?—

A. Throughout the building. ;

‘ ‘4

Q. What abbut the public lobby. on the ground floor; do

‘ you clean that?—A: I do not clean that: no. >

.The Court. Are you assigned as an assistant t Mr bitvera?

, He said there was only one man was his assistant

was you? —

Thé Witness. That isfight.- °* °

The Court. You regard yourself as assistant to Mr. Silvera?

The Wirness. That is right.

. Q. Forgetting for the moment your duties as assistant to

Mr. Silvera, will you describe in a little *more detail what ~

you do during an active routine day2%—A. Well, when Mr.

Silvera has odd jobs to do,: like fixing , windaws, putting

chains in, I help him, and look after the elevatots upstairs,

oil, and do other work there.

Q. Do you ever operate an elevator? >A. That is right.

Q. When do. you do that?—A. I do that between 5 and 6.

Q. Every day?—A. Every day. °

Q. What kind of-an elevator?—A. Freight elevator.

Q. Does it have any particular number?—A. Well, that

is No. 2 car, I think it is. I don’t know. _.

Q. And you transport merchandise?—A. Yes, sir.

Q. From the ground floor to the floors of, the tenants?—-A.

That is right. ~

The Court. I would not use the word “transport.”

‘Mr. Rozen. All right, operate the elevator, your Honor,

The Court. Operate the’clevator, and on the elevator you

take up and bring down merchandise?

The Witness. Merchandise."

Q. How do you. resptnd to the Senate’ request to take

merchandise onto your car?—A. Well, I go down to the floor,

and the tenants come in with racks and so forth, and I let

them on the car.

By. the Court:

Q. Those little wheeled things?—A. That is right. They

have got what they call racks, high ees: they put the dresses

‘on.

Q. ¥es; anid they have wheels below? —A. That is right.

Q.. They : are pushed in on the elevator?—A. Yes.

' .Q. How big are these freight elevators?—A. They are —_

big. They take five big racks on them. |

Q. Are they 5 feet suare or 10 ‘feet square, or what?—

A. I would not know.

The Court. It is pretty hard to guess those things exactly.

Mr. Rozen. Indicate 1 in the courtroom here. , —

i tere

The Witness. From here to the end of this table [indicat-

ing], and it. is just as wae, to this. tabl heres It is, quite a

large elevator.

_ _-Q. Who deals with ihe racks of dresses, or whatever they

are?—A. Well, you see the truckmen bring in them racks and |

they ‘go to th ‘various floors. <

Q. Phat if the truckmen of the trucking. companies?—A.

The truckmehof: the trucking companies; yes, sir.

Q. And they handle the racks when. they are put on the

clevators?—A, On the elevators, and they take them up to

the various floors. sf

Q.:And all you do is just run the elevator?—A. Run the

elevator. .

By Mr. Rozen: :

Q. And the truckman rolls off the rack or push truck, as

the case ngfiy be?—A. That is right. ~ .

Q. Into the elevator hall?—A. That is right.

Q..And pushes it also inside of the premises‘ of the ten-

ant?—A. That is right.

Q. S6 that he delivers his ntiieiale ecco in the premises

of the tenant?—A. That is right. “«

Q. On the way out, of %e merchandise, if you know where

does’ the truckman pick up the merchandise?—A. -They pick

= from various floors, and they bring it down’ to the main

oor.

Q. They pick. it up in the premises of,the tenant, do they?—

A. From the tenant, that is right, and bring it to -the freight

hall, and from the freight hall bring it down on the elevator..

Q: Can you describe the sort of merchandise that you take

down from the tenants’ premises?—A. Well, you take racks

of dresses, and we take different merchandise ‘that goes in and

out,: piece goods and so forth, that goes out of the premises

every night and is taken down on the truck, and I do not now

what they-do with it—deliver it, I suppose. -

Q. Do they take materials in any other form ‘than piece

- goods or dresses on your elevators?—A. Well, cut goods.

Q. What do you mean by cut goods?—A. Jt is cut on the

premises and taken out to different various contractors:

The Court. I have. had so many of these cases in the needle

trades, about patents and things like that. I feel very much at -

home about them. —

Mr. Rozen. I am glad to hear that, your Honor. It will save

us a lot of examination, perhaps.

Q. Is there much traffic there in the evening?—A. There i is.

Q. Do the elevators manage to dispose of that smoothly?—

8. ,

en eam ae

A. Well, ina way they do.. It takés a little time; it takes about

an hour or a half hour sometimes to bring the people down and |

the truckmen down from 5 to 6.

Q. You say you take people dow on the freight elevator?—

. A. That is right.

» . Q. Who are these ‘people?—A. Sean Wiesen’s floor and

» from Sehneck’s floor, operators, cutters, and so on, come down —

on the freight elevators from 5 to 6. ~

..,’ Q. Just the operators on Wiesen’s and Schnieck’s floors?—A.

That is right.

‘ Q. How about the operators of the other eectaniat ?—A. ‘They ;

do come down, but very:few. But the met we get from the

two floors. |

The Court. They de that more often, those concerns; is tha

right? a

The Witness. Yes: Besa

ee” * Have you ever had occasion in ‘connection with your

porter work to knock down walls?—-A. That is -—

The Court. Knock down walls? f

* Mr. Rozen. Yes, your Honor.

QQ. What do you mean by kno¢k down walls, Mr. Lipsman?-~

en Well, we are told to go up on ladders with big sledge ham-

mers and break down walls. -

~The Covrr. You mean these plaster walls?

The Wirness. Plaster walls.

‘The Court. I understand what you,mean.

-. Q. What floors are you talking about, Mr. Lipsman?—A.

Well, all over the building. That is all over the building.

' Where the tenant moves out we break up the walls and’ it is

The Court: Every new tenant wants to have things aritnsed |

a little bit differently, whethér a law officer or whatnot.”

“Mr. Rozen. The at is true, your Honor. '

Q. Do you ever move. any of the. materials, or’ rather the

equipment of the tenants, on the elevators?—A. Sometimes, °

yes.

Q. Will you describe that, please. — A. W ell, in cases where

we have got to take from floorto floor a tenant moving out,

when we move him from one floor to another, the desks and

so forth, safes, from one floor to another.

-Q. Does it.ever happen that a tenant moves: from one part

of a floor to another part of the same floor?—A. Well, no; but

a tenantewili move down -from one floor to another, where

we have to’ have. two men working to bring them down.

‘Q. In accordance with your duties as a porter do you help

dean the lav atories?—-A. I sometimes do. 2%

* dp — 9.

’

Q. Those located - in ‘the tenants’ premises?—A. Well,

wherever there i is an overflow or something like that, where -

the water is dver the floor, I go in there and mop it up.

Q. This is in the tenants’ premises, you are enti about?

- A. The tenants’ premises; that is right.

} Do you help i in any way with respect to the rubbish? —A.

0. na:

Q. And réfuse?—A. ) See .

Q. In what way?—A. I take from ‘the tenants all kinds of

files and stuff and bring it down to the incinerator and-burn

"dt up. ss

Q. What about the regular daily refuse, cutting and clip-

‘pings and things-of that nature?—A. Well, that is takencout

by a night man dt night; by an individual cotapany. »

Q. By an individual company?—A. That is right.

The Court. What do you mean by an individual company?

The Wirngss. By a regular rubbish man, at night. They

take out. the stuff at night. °° -

Q. Do you wash any of the floors in the | buflding?-—A. I do.

Q. What floofs?—A. WwW ell, oecasionally different floors. .

Wherever it is necessary. 5

Q. Is that in the tenants’ premises?—A. Yes,

Q. In the fenants’ premises?—A., In the tenants’ premises.

Q. On what floors have’ you worked?—A. JI worked on Wies-

eh’s floor, I worked.on Schneck’s floor.

The Covrr. They have sever al floors? , : Pa

The Wirness. Several, that is right. And different other _

‘tenants, where the tenants are moving in.

/ Do you ever repair any fixtures or electric: al equipment?—

oO. °

Q. Does the tenant Max Wiesen make any use of the freight :

ee exclusive of going down te-the ground floor?—A. They

do. .

Q. Will you explain that, please?—A. Well, they go “from

floor to floor—from 19 to 18, from 19 to 21, from 18 to 15,

‘where they have got their stock room..

Q. What do they carry?—A. They carry dresses down to the

15th floor, and they have got a stock room down there; they

put all their stuff in that stock room.

Q. In other words they put it-on the freight elevator and

“the freight elevator——A. The freight elev ator Denes it down. |

' to the 15th floor to their ‘stock room.

Q. They go in betw een to the other floors, téo?—-A. They do.

Q. Do they carry anything else besides dresses?—A. ‘Well,

. °

} ; :

J hee A 8

» , .

= .

— <Q? “What kind of papers, Mr. Lipsian?—A. Well, all kinds

of records they bring from floor to flor. They bring boxes’ "

- from 17 to 21 and from different floors.

‘#. Q. Do the employees use the freight elevators i in between

_ these Qoors?—A. They do.

' ’ Q. To wha iin: fe Well, they go from 19 to-21, where.

they can go up, and from 18 to 21, and from 21 down to 18. es

Q. Is this use of the elevators a frequent: or rare occur- .

rence?—A. Rare occurrence. Once in a while. If fhey eannot

get their little elevator they use the freight elevators.

Q. Is the little elevator—you megn me private elevator?—

A. Private elevator.

Q..Is that adequate? . :

Mr. Merritt. Aren't you asking for a conclusion?

The Cotrr. What do you mean by “adequate”?

Mr. Rozen. I have not finished the sent caer

Q. Is that adequate to take care of the efitire traffic for Max -

Wi iesen?—A. You have got to do that.

- Q. I mean, do they’ find many occasions during the day, ot

‘don’t.they? Tell us what the facts are when they find it neces-

sary to use the freight elevators to transport——A. You see, - |

‘when they are bringing down dresses frorn 19 to 18 they use

the little elevator. Where the people cannot go up from that

floor to the next floor they generally ring the bell for the freight

elevator and take them up to the different fioors. .

Q. Bo they ase the staircases in the same way between the. -

flocrs?—A. They do. ~ ;

Q. And the passenger. elevators?—A. I do not know about

.. passenger elevators... -I cannot tell you about that.

“s Mr: Rozen. I think, your Honor, we better take the recess.

-I am taking longer than I pesky ciaia T would, as ‘— ays nae ee

pens, pf course. 8 *

(Recess to 2:30 p. m. ) ;

eb iy ierne.

artenn Soe SESSION

PSMAN- yesumed the stand.

ARTHUR :

ve have no further questions * Mr. Lipsman,

Mr. Rozen,

your Hener.

‘Cross-examin ion by Mr. Mesarvrr:

Q. Mr. Lipsnian,' do 1 understagd aright, that. all waste,

‘including papers ‘and cfippings from cloth, and things of that

kind, are removed from the premises of the tenants by an

eutside concern and carried away as wasté 2—A. That is right.

Q., Do you happen to know occa name of the concern?—

A. Pdo not; no. .

: Q, Whether it is- ‘the Wilson binds Stock leith I

do not know.

-. Q. At any rate, that is something done. -by an outside con- —

tractor?—A. That ‘is ‘Tight.

Q. Employed by the tenants themselves for that pur-

The, Court, Not probably employed but hired? .

The Wirness. They are hired. . as

Q. These freight elevators to which you referred, as I un-

derstand it, carry goods that come in at the basement and

are taken up to the tenants’ premises?—A. That is right.

‘Q. They carry manufactured articles that come out from

the tenants’ premises?—A. That is right.

“a °

‘or an old tenant is staying on under a renewal lease TA, That -

Q. They carry materials that are simply cut up and sent

out to-outside contractors to be made into garments?—A.

That is right.

Q. And then when those garments have beert made up by.

outside contractors the same elevators carry them back to the

tenants’ premises?—A. That is right. ;

Re They also at times carry some passengers?—A. That is

right.

make up those garments from ‘the cloths that are cut up are

located in. the City, or don’t you know about that?—A., I .

know they. are sent out of town, but where I do not know.

Q. Is it nota fact that in_all ordinary daily vey "wir

' that the tenants look after the cleaning of their own floors? ne

A. No, sir. ;

Q. Do you mean that you or other employees of the nena

‘Company: clean up the floors of the tenants day after day?-—— —

_ A. Not day after day, but whenever we are called to do SO

we have to go in and da it.

Q. But ordinarily it-is done by the tenants. themselves, is

it not?—A. Themselves, yes.

Q. There aré exceptions, perhaps, when a lease runs out and

~ anew lease is entered into?—A. That is right.

AQ. And in some instances you clean-up a floor preparatory.

to Aare

Q. And that is usually at a time when a tenant is moving in

isright. - *

Q. But ®enerally speaking, during the term of thé lease

do you know what [mean by that?—-A. “Yes, sir.

Q. Isn’t-it a fact that the tenant assumes the responsibility .,

of ‘taking care of his own premises, including the cleaning of = 4

floors?—A. Well, he does in a way.”

Q. As a general rule, is it not so that the contractors: who

ing by the landlord, do younot?—A. That is right.

60.

The Court: I don’t care- what he says, “I believe that en-

"timely: I suppose you" would have to fix a window if it was.

broken or things like that» .. °

"Mr. Merrit es; I think that question is too broad..

' Q. But gene ‘speaking. during the term of the lease the -~

7 tenant takes care of his own floors?—A. In away they do. _

The Court. He does not think they do it very well, appar-.

ently.

Q. You do not ordinarily y.gnter into te tenant’s premises to"

—> —— clean up their-floors: durint the term of the Teneo; do-yout——-

pA A. Well, sometimesI do. . :

.Q. Ugder what conditiois do you do that?—A: Well, tenants

‘that have a lot of waste, like records and stuff like that that

they want to burn; we got to come in there antl put it on. trucks °

and bring it dowestairs and burnit youknow. & ° y

_. Q. Where do you burn that?—A. Burned down in the i incin-

: ‘erator. :

(Q. That is an unusdal ty of situation, is it not?—A Well,

_ it is dgne every once in a wile. . IgE

t. Q. Then it might happen once a year as to ech tenant?—

> A Oh; sometimes it is twice’'a month and sometimes once a.

- month, aecording to how they w ant their records burned. They..

want toget.rid of them. ,, /

Q. And those records are not povered by. the contract of this

outside company that. comes in and removes the. refuse?—

va Well, you see:they don’t want that sontractor to get: hold —

Of their records and-they burn it up. se

Q. So this applies to records which the tenant likes to Geol

_ “The Courr. I should say that the records are papers burned °

it. means.

.Q. The ordinary type of papers are taken i away by these out-

side concerns or contractors in the same way that. the clippings

from. garments are, is that not so?—A. No, ‘sin Sometimes

they. leave all the rubbish ir the hall where | we got to- take it

down and dispose of it. ‘a.

3 Q. So that is where the rubbish is; in the outer hall?—A,

‘ «Tn the outer hail; yes.

: -Q. I don't want to pursue this’ too far, but‘as a: general —

’ proposition, day in and day out, during the term of the lease,

the tenant cleans his own, floprs, does he not?—A.: Well, yes;

his own lofts; He does thar.

Q. Now as to toilets, isn't it a fact’ that where the toilets

are insi the premises of the tenant, where, for instance, a .

. , tenanty or an entire fioor, then the ‘tenant looks after

ve ; Per? | Seaes i 2%

- the cleaning of his own toiletsg—A. Well, they do, ‘but if!”

there is an overflow of water or things like that, well, we got

* to go in and do thercleaning. We — tS clean up that water

‘off the floor.

Q. That is in case of any. emgrgeney which may mean Teak-

age in the building?—A. That is right.

- Q. You go in and take care of it?—A. That is right.

> Q. But as to the daily keeping up of the toilets, that is left

to the tenants, is it not?—A. Well, the private tenants; yes.

___,. The Covrr.. You-mean_that-for_tenants-who have private

g toilets, they take care of thenr ordinarily, absent from emer-

_ gency, and then the other, where the public toilets are con-

cerned, the building takes care of that, is that a...

The Witngss. Yes, sir; that ik it

Mr. Merarrr. And as I csdsestandl Ht, your Honor,. there

are private toilets merely where the space includes the gen-

erat“location where the toilets are lgcated and where the

space does not cover that, they are plblic toilets.

_ thing like that and you would have what. miglit be called a

plurality of toilets and you would shave to ane care of sae

yourself. “4

Mr. Mrerirr, That is all.

” CHARLES - ANDERSON, called as a witness on behalf of the

. Plaintiff, being first duly sworn; testified-as follows: ~

you examine.them may bt excused?

; Mr. ReyMAN. Yes. .

_ Direct examination by Mr. —

“Q. Where ” you live, Mr. patersiesaty 5120 19th Ave-

nue, Brook

Q. Where. are: you employed?—A. 463° Seventli Avenue.

“Q. That is the Arsenal Building?—A. Right,

Q. How long have you been employed there?—A. Risteon

years. 4

Q: And what do you Me there now?—A. I am a freight

_ starter.

Q. Have you always been. a freight starter?—~A. Yes, sir,

Q. Explain what you mean by freight starter, will you,

freight cars; load them and see’ that they get loaded quick.

Q. You are the-man who dispatches them?—A. In the

freight department. °

The Court. In the en: elev ators? 4% the:

;

« The Covurr. Yes; you take two floors or five floors or some-. °

Mr.-Mernirr. I understand that each of these witnesses | as

please? —A..To keep the cars running up and down, .the -

Somes a >

Skee &

eae

in ine Geng Central Station to carry your luggage: on,

‘straight up, and then if cars are delayed upstairs I have-a

' buzzer downstairs to bring them down; sort of regulate the

The Seen That is hats eee

Q. How long: have you been a freight e

A. “About four years.

Q.. Where are you located in: the building, Mr. ‘Anderson?—

"A. On the 35th Street side.

Q. And is that onthe ground floor?—A. Yes. .

Q. That is the street level?—A: Yes.

Q. Is there a public doorway anywhere near where you are

and where the elevators are located?—A. No. There is a

e—trueks-_come-ia—

Q. You are stationed then at the bottom. of the elevator |

shafts, the freight elevator shafts?—A. Yes, sir.

Q. Will you’ explain just generally what your duties dre,

what you do when you are there?—A. Well, I try to keep |

the traffic going up and down as quick-as possible and see

that the freight Béts off and on - elevators, and pot too

many. people get on there.

Q. How many freight ‘elevators are there?—A. Four.

Q What is the nature of the traffic oiy those eleyators?

What. is earried on theni?—A. In what ‘eke do you mean?

Q. What is carried up and down?—A. Well, trucks and

racks and different things like that; packages : and stuff.

Q. Is it part of “your duties to assist in the loading and.

unloading of those ‘ dovatatal ?—A. No; not necessarily.

Mr. Merritt. I object-to that question. : .

The Court. Yes; it is a very leading question. Objection

sustained. What do: you.do there? Just supposing I was.

standing there and watchiig you start those elevators up and .

gown, whatwould I see ‘you‘do?

The Witness. Well, you would see me, as soonwas one car

gets loaded I give him the buzz and tell him to go right

traffic like, .

The Court. You niean. you press a button——

- The Wirness. ¥es; and that is contacted on the car.

Q. You mentioned trucks going on the elevators. Who p

the trucks of them?-—A.. The truckmen themacives.

The Court. By trucks you mean——

The Witness. Dress trucks and like that. °

‘The Court. When you say ratks, you mean the

- frocks are hung on. 3

. The Wirness. Yes. ‘ °

Fhe Court. And when you say trucks, you mean th sort |

of things that-are similar to those little hand trucks, they

'. you?. Those where-they have a whole lst of luggage piled up, ‘

a truck with two wheels and a handle, and then you lift it

and it slopes but if you pile the ‘luggage 6 on so: ‘it does. not sit

on, you go on down, is that right?

‘Mr. Reyan. I think so. Ae

The Witness. Your Honor, they hee quite a few differ-

ent kinds of trucks and they have what you eall box trucks

and then what’ you said with two wheels and then they have

the racks and flat. trucks where they put packages on. The —-

t-dresses-on*the same as they do the racks.

: They. hang them on.

The Cougrt. I see.- In fact I have actually’ seen them going °

. through the streets. That is not attended: to by you. You do

not do any loading?

The Wirvess. No; no; the truckmen themselves do that.

They Have helpers, you know.

- The Courr. T he truckmen are. Abit that come in from

outside.

The WitTnesg. Outside, ana hey come down from upstpirs,,

too.

hat Fae

4°

By } tepstaat?

Q. What. is your main duty ddaawe. Mr. Anderson?—A. My

main duty is to keep. the hall clear and see that merchandise

and stuff gets out as quick as possible:

_ Q. What are the honrs of the day you are there generally%— sy.

A. I am there from ten after nine yntil six at night, not in ‘the

hall, though. -I am on the car for about two hours during the

‘day.

; Q. And what hist are they, generally ?—A. From nie in

- the morning’ until about half past ten.’ -

Q. All right. From:‘nine in the morning until said half.

past ten when yqu are Onthe cars. do you carry trucks with

dresses and so on that you have mentioned?—A. I do.

Q. Do you carry passengers on the elevators at any time :

during that time?—A. I do.

The Court. When do you run the elevators?

Mr. Reyman.. Your Honor, he testified that he does that,

‘ two times during the day, from: nine until ten-thirty,.and I

was asking who he carried in the way of. _passengers at that

time. .

The Witness. “And also from about five to six in the |

evening. —

Q. Directing your attention. to the hours froni nine to ten-

thirty, you say you carry " passengers?—A. Passengers and

trucks.

“4 2

assengers you carry. where do you take

fel], Luse ..y opinion not to put too

ers are going on the cars. I use it

Q. Now as tot

them, generally?—A.

many. trucks while passe

just for passengers.

Who are these passengers? Are they the employees of

the building?—A. Yes; they are employed by Max Wiesen &

Sons. .

Q. Doyou take them to all floors or w hat floors generally?—

A. 19th—17th. es 1h

+ QQ. Do you carry any passengers down i

when you are on the elevator?—A. Well, ret ‘they. have

changed their hourg. They do not get through until six o’clock

+80 I have no necessity of taking them down. When I go home

—they are just coming down.

‘~ Q. What are the busiest hours of the day, Mr. Anderson, with

respect to the goods that are coming in: and going out?—A.

Well, I should say fronfabout three o’clock until ¢ about half past

four,

Q. In the afternoon —A. Yes.

Q. Most of them: are going in or coming suttoA. Coming IP)

and going out both.

Q. So you have a flow of traffic ss and down at all stig

A. Yes.

Q. And you control your elev ators from your station’ *down

on the ground floor there?—A. Yes. - .

-Q. During the other hours of the day swhen- 4it is not so: busy, |

‘is there a steady flow’or do the elevator operators have interims

of rest?—A. Well, it is some periods that is not as busy as

‘others. They get a little breathing. spell like, but when they

. come they come in droves,.in bjg bunches.

Q. This door that: you have described that, is on the side.

street, on 34th Street, is that door on hinges? Is it an open

door?—aA. Yes; it is on hinges.

Q. Are the doors g generally closed?—A. Well, divtek: a cold

spell we have them closed for a while, but they ‘are usually

open.

Q. gdnd the traffic in “and out of the’ building - through

those doors?—A. Yes. .

The Covrr. Now wait a minute.

Mr. Reyman. I am referring to the.dress traffic, and so on.

The Covrt. Well, then, that sort of answers my question. I

got the impression there was a passenger entrance somewhere.

Mr. Reyman. There is,and that will be brought out. °

‘Q. In addition td that side entrance there, that large door ”

you have described, is there any other method of ¢ going in and |

out on ie Street 2A. No.

- .

oe <,"

; Q. You are familiar with the Railway Express “chute?—A.

am.

Q. And. how does’ the Railway Repress traffic get in and out

ef the building?—A. Well, in the morning they bring in the

returns and in the hours between about five and six they send 7

out their shippings. +e

Q.And what door is used for that?—A, That is the same

freight door. -

Q. Do the Railway Express trucks cross the sidewalk into

platform, or do they remain —

in the street?—A. They remain right on the street. They,

don’t have to cross the street.

Q. Do the packagg come right down the Geate and are they Se

put onte, the bets there?—A. Yes 2 =

The Cotrr. Have you looked at this little plan that was

- mentioned this morning? -

Mr. Merrirr. I have not yet. :

The Courr. It was only offered for identification but I wish

you would look at it.

- . Mr. Merritt. I presume I have no objection to it, but there

ws so much written matter on it that I thought I ought to —

lok at the written matter. a

Mr. Reyman. We are not concerned with the adveriising.

The only reason we are offering it is for the plan of the

building.

Mr. Merritt. I have no ‘objection. to it going in for that

purpose. “When I asked Mr. Rozen the question he said he

= offered ‘it for everything in it.

The Court. OF course if you just take these two pages, the

typical floor plan and the plan of the stores—what do the —

stores mean? .

The Wirness. Well, there is‘a sort of cafeteria there.

. The Court. You mean the shops downstairs? - ‘~ e

_The Witness. No; they-are’stores. .There are no shops;

no shops on the main floor; only that cafeteMa. 9)

_.. The Court. I really do not see why this should not go in;

‘just this part. describing the choice location. -

Mr. Merrirr. May I look at it for about sixty: seconds, I

.. presume there is.no objection. . me ;

(Same handed to Mr. Merritt.) .

The Court. We might. as wel®have it in.

Mr. Merritt. I have’no objection to it going in, but the

ground floor is not as it is now, my clients tell me. This has

been decidedly changed. T

This text is long and has been trimmed here. Open the source document for the complete record.

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