Prescott v. Broadway & Franklin Street Corp.
Prescott v. Broadway & Franklin Street Corp.
Opinion of the Court
Plaintiff was employed at premises 359 Broadway, in the City of New York, a building of five stories with a basement and a sub-basement. He was janitor, fireman, elevator operator, porter and handy man. He is suing for unpaid wages under the statute for the period from October, 1938, to June, 1942.
During this period one floor of the building was vacant; another was occupied by a tenant who bought and sold and sometimes refurbished used typewriters, but this witness’s testimony was so vague and contradictory that we are unable to make any relevant finding of fact on it. During that period, or a large part of it, the store floor, basement and at least part of the sub-basement was occupied by a jobber in converted textiles. This tenant employed a stenographer and one shipping clerk who sometimes opened the cases of goods and sorted them as to color and pattern and repacked them accordingly before shipping. A large part of the merchandise of this tenant — the volume or value was not given — was sold interstate. Its connection with the plaintiff’s case depends entirely on the sorting operation of the shipping clerk and we do not believe that his operations constitute production of goods' for commerce. Section 3(j) of the statute, 29 U.S.C.A.
The remaining two floors were occupied by a single concern, the Stanley Company. This company manufactured bags and there is no doubt that it produced goods and its witness said that a large part of its manufacture was shipped out of the state though he was at a loss to define what part. His testimony was hesitant and doubtful and dealt exclusively in general statements supported only by an unreliable memory. No details of its business were supplied by the witness and we are without information as to its extent or its output volume measured in any terms. For this reason we do not believe the plaintiff has borne the burden of proof imposed upon him. It is true he has proved that two floors of a size-able building, containing five stories, a basement and a sub-basement, were occupied by a concern manufacturing an unstated amount of goods, some of which may have been for interstate commerce, but we are not satisfied this is enough. In A. B. Kirschbaum Co. v. Walling, 316 U.S. 517, 62 S.Ct. 1116, 1118, 86 L.Ed. 1638, “large quantities of goods” were produced for interstate commerce. It is hardly reasonable to hold that a mere allotment of floor space in a building to any one business is any evidence that enough goods proceeded therefrom into the channels of interstate commerce to give any character to a service man’s work or that a mere percentage of floor space alone can be any safe standard or guide for either an employee or an employer in determining an employee’s wage under the Act. It is true that it might without more engender in either employer or employee an opinion that the Act might include them but then either would have to pursue the matter further before reaching a decision. A Court must know more of the business which the plaintiff claims to serve than merely the extent of floor space covered. Plaintiff here has furnished no information upon which any basis can be established for an adjudication that his services were recognizably necessary to production of goods. The administrator has declared that “if less than twe'nty per cent of the building is occupied by tenants therein engaged in interstate commerce or in the production of goods for
Reference
- Full Case Name
- PRESCOTT v. BROADWAY & FRANKLIN STREET CORPORATION
- Status
- Published