Merrell, J.:
Defendant upon conviction was sentenced to pay a fine of twenty dollars which fine was paid. The defendant appeals from such conviction, claiming, first, that certain articles manufactured and finished, to wit, babies’ bibs, were not wearing apparel within the provisions of the statute. The appellant also contends that the statute itself is unconstitutional as discriminatory and denying certain classes of people, and particularly the defendant, the equal protection of the law guaranteed by section 1 of the Fourteenth Amendment to the Federal Constitution.
Section 104 of the Labor Law (as amd. by Laws of 1913, chap. 260), for the violation of which the defendant has been convicted, provides as follows:
“ § 104. Manufacturing of certain articles in tenements prohibited. No article of food, no dolls or dolls’ clothing and no article of children’s or infants’ wearing apparel shall be manufactured, altered, repaired or finished, in whole or in part, for a factory, either directly or through the instrumentality of one or more contractors or other third person, in a tenement house, in any portion of an apartment, any part of which is used for living purposes.”
The penalty imposed upon the defendant for the violation of said section is provided by section 1275 of the Penal Law (as amd. by Laws of 1913, chap. 349), which provides that any person violating a provision of the Labor Law is guilty of a misdemeanor and upon conviction is punishable for the first offense by a fine of not less than twenty nor more than fifty dollars. Upon defendant’s conviction the minimum sentence provided by said law was imposed.
The evidence shows that the defendant had a factory at 2292 Arthur avenue, borough of The Bronx, New York city, [137] and that said defendant employed a woman to do the stitching on twenty-four dozen babies’ bibs; that on September 5, 1919, the said woman was doing the work in question in her apartment in a twenty-family tenement house at 2540 Cambrelling avenue, borough of The Bronx. No evidence was introduced on the part of the defendant, and the facts above stated appear undisputed and uncontradicted in the evidence.
It is the contention, as before stated, of the defendant, appellant, that the articles in question were not articles of “ infants’ wearing apparel ” within the meaning of the statute; and, secondly, that if the statute can be construed as applying to the articles in question, to -wit, babies’ bibs, it is ■unconstitutional.
The law is of course, enacted as a health measure, for the protection of the health of infants, and the very purposes of the statute have been violated by the acts of the defendant in the case at bar. There can be no question but that the bibs which the defendant was manufacturing were articles of wearing apparel. The cases are many holding that similar articles are wearing apparel, and that wearing apparel is not confined to clothing, hats and shoes, but that any article intended and adapfied to be worn on the person and necessary and proper for the protection of the person or for the person’s personal comfort comes within the definition of wearing apparel. There can be no question but that the bibs manufactured by the defendant were to be worn as a part of the apparel of infants. A thin lace collar to be worn on a woman’s neck has been held by the courts to be wearing apparel, although worn merely for ornamentation. (Matter of Evans & Co., 158 Fed. Rep. 153; Arnold v. United States, 147 U. S. 494; Matter of Steele, 22 Fed. Cas. 1202.)
The appellant devotes a large part of his brief in an attempt to argue that the bibs manufactured by the defendant were not wearing apparel. It seems to me that the proposition is too. plain to require any extended discussion. The articles themselves, as before stated, are worn by infants and a contract made for their manufacture in tenement houses and in unclean surroundings comes directly within the intent and meaning of the statute.
As to the constitutional question upon which the defendant [138] ■ relies, that question was not raised upon the trial, and the defendant should not be permitted to assert the same upon this appeal for the first time. (People v. Ostrander, 144 App. Div. 860; Dodge v. Cornelius, 168 N. Y. 242.) The sole defense interposed by the defendant upon the trial was that the bibs in question were not wearing apparel within the meaning of the statute. No attempt was made upon the trial to raise any question as to the constitutionality of the statute, and, therefore, if a defense, it must be deemed to have been waived.
However, it seems to me that section 104 of the Labor Law was entirely constitutional and a valid exercise of the police power of the Legislature. It was enacted purely as a health measure in order to protect the health of children, a matter of the utmost importance. The statute reads that “ No article of food, no dolls or dolls’ clothing and no article of children’s or infants’ wearing apparel shall be manufactured, altered, repaired or finished, in whole or in part, for a factory, either directly or through the instrumentality of one or more contractors or other third person in a tenement house, in any portion of an apartment, any part of which is used for - living purposes.”
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Merrell, J.:
Defendant upon conviction was sentenced to pay a fine of twenty dollars which fine was paid. The defendant appeals from such conviction, claiming, first, that certain articles manufactured and finished, to wit, babies’ bibs, were not wearing apparel within the provisions of the statute. The appellant also contends that the statute itself is unconstitutional as discriminatory and denying certain classes of people, and particularly the defendant, the equal protection of the law guaranteed by section 1 of the Fourteenth Amendment to the Federal Constitution.
Section 104 of the Labor Law (as amd. by Laws of 1913, chap. 260), for the violation of which the defendant has been convicted, provides as follows:
“ § 104. Manufacturing of certain articles in tenements prohibited. No article of food, no dolls or dolls’ clothing and no article of children’s or infants’ wearing apparel shall be manufactured, altered, repaired or finished, in whole or in part, for a factory, either directly or through the instrumentality of one or more contractors or other third person, in a tenement house, in any portion of an apartment, any part of which is used for living purposes.”
The penalty imposed upon the defendant for the violation of said section is provided by section 1275 of the Penal Law (as amd. by Laws of 1913, chap. 349), which provides that any person violating a provision of the Labor Law is guilty of a misdemeanor and upon conviction is punishable for the first offense by a fine of not less than twenty nor more than fifty dollars. Upon defendant’s conviction the minimum sentence provided by said law was imposed.
The evidence shows that the defendant had a factory at 2292 Arthur avenue, borough of The Bronx, New York city, [137] and that said defendant employed a woman to do the stitching on twenty-four dozen babies’ bibs; that on September 5, 1919, the said woman was doing the work in question in her apartment in a twenty-family tenement house at 2540 Cambrelling avenue, borough of The Bronx. No evidence was introduced on the part of the defendant, and the facts above stated appear undisputed and uncontradicted in the evidence.
It is the contention, as before stated, of the defendant, appellant, that the articles in question were not articles of “ infants’ wearing apparel ” within the meaning of the statute; and, secondly, that if the statute can be construed as applying to the articles in question, to -wit, babies’ bibs, it is ■unconstitutional.
The law is of course, enacted as a health measure, for the protection of the health of infants, and the very purposes of the statute have been violated by the acts of the defendant in the case at bar. There can be no question but that the bibs which the defendant was manufacturing were articles of wearing apparel. The cases are many holding that similar articles are wearing apparel, and that wearing apparel is not confined to clothing, hats and shoes, but that any article intended and adapfied to be worn on the person and necessary and proper for the protection of the person or for the person’s personal comfort comes within the definition of wearing apparel. There can be no question but that the bibs manufactured by the defendant were to be worn as a part of the apparel of infants. A thin lace collar to be worn on a woman’s neck has been held by the courts to be wearing apparel, although worn merely for ornamentation. (Matter of Evans & Co., 158 Fed. Rep. 153; Arnold v. United States, 147 U. S. 494; Matter of Steele, 22 Fed. Cas. 1202.)
The appellant devotes a large part of his brief in an attempt to argue that the bibs manufactured by the defendant were not wearing apparel. It seems to me that the proposition is too. plain to require any extended discussion. The articles themselves, as before stated, are worn by infants and a contract made for their manufacture in tenement houses and in unclean surroundings comes directly within the intent and meaning of the statute.
As to the constitutional question upon which the defendant [138] ■ relies, that question was not raised upon the trial, and the defendant should not be permitted to assert the same upon this appeal for the first time. (People v. Ostrander, 144 App. Div. 860; Dodge v. Cornelius, 168 N. Y. 242.) The sole defense interposed by the defendant upon the trial was that the bibs in question were not wearing apparel within the meaning of the statute. No attempt was made upon the trial to raise any question as to the constitutionality of the statute, and, therefore, if a defense, it must be deemed to have been waived.
However, it seems to me that section 104 of the Labor Law was entirely constitutional and a valid exercise of the police power of the Legislature. It was enacted purely as a health measure in order to protect the health of children, a matter of the utmost importance. The statute reads that “ No article of food, no dolls or dolls’ clothing and no article of children’s or infants’ wearing apparel shall be manufactured, altered, repaired or finished, in whole or in part, for a factory, either directly or through the instrumentality of one or more contractors or other third person in a tenement house, in any portion of an apartment, any part of which is used for - living purposes.”
The appellant raises the point that the statute is discrimi- ■ natory in that it prohibits the manufacture in tenement houses of the articles of wearing apparel for infants only in cases where such manufacture is for a factory, and that under the statute an individual not a factory would have the right to engage in the manufacture of such articles in the prohibited places. I do not think the statute is susceptible of the interpretation which the defendant attempts to put upon it. By section 2 of the Labor Law (as amd. by Laws of 1917, chap. 694) a "factory” is defined as including "any mill, workshop, or other manufacturing establishment and all buildings, sheds, structures or other places used for or in connection therer with, where one or more persons are employed at manufactur- ■ ing, including making, altering, repairing, finishing, * * * . any article or thing, in whole or in part, except dry dock plants engaged in making repairs to ships,” etc. Further, that “ work shall be deemed to be done for a factory within the meaning of this chapter [Labor Law] whenever it is done at [139] any place, upon the work of a factory or upon any of the materials entering into the product of the factory, whether under contract or arrangement with any person in charge of or connected with such factory directly or indirectly through the instrumentality of one or more contractors or other third persons.” The courts have defined a factory as a structure or plant where something is made or manufactured from raw or partly wrought materials into forms suitable for use. This is the primary definition which was extended by the statute so as to include any “ mill, workshop, or other manufacturing establishment * * * where one or more persons are employed at manufacturing.” (Shannahan v. Empire Engineering Corp., 204 N. Y. 543; O’Connor v. Webber, 163 App. Div. 175.) It seems to me that the Legislature by using the term “ for a factory ” intended to mean thereby and to include any person or individual, company or corporation engaged in the manufacture of the goods in question. In the case at bar there can be no question but that the defendant did conduct a factory, and interpreting the statute as including in the words “ for a factory ” any person or individual engaged in manufacturing, the statute becomes comprehensible and applicable to all cases where the articles mentioned are manufactured.
I think that a statute of this sort should be most liberally construed to carry out the evident purpose of the Legislature, and that it is our duty if possible in the interest of justice and of humanity to affirm the conviction of the defendant.
It is also the claim of the appellant that section 104 of the Labor Law should be read in connection with section 100 (as amd. by Laws of 1913, chap. 260) which provides that no tenement house nor any part thereof shall be used for manufacturing, altering, repairing or finishing any articles except for the sole and exclusive use of the person so using any part of such tenement house or the members of his household, without a license therefor as provided in article 7 of the statute, but that nothing therein contained shall apply to collars, cuffs, shirts or shirt waists made of "cotton or linen fabrics that are subjected to the Iaundrying process before being offered for sale. Defendant contends that this section should be read in connection with section 104, and "where it appears [140] that the articles have been laundered that such laundry reheves defendant from the charge of violating the statute. Section 100 is entirely separate and distinct from section 104, and clearly refers to collars, cuffs, shirts and shirt waists used by adults. Section 104 is complete in itself.
I do not think there is anything in appellant’s point that the statute (Labor Law, § 104) deprives the defendant, appellant, of liberty or property without due process of law. (U. S. Const. 14th Amendt. § 1. See, also, State Const, art. 1, § 6.) As before stated, the statute was a legitimate exercise of the legislative power for the purpose of protecting the health of infants. (People ex rel. Nechamcus v. Warden, etc., 144 N. .Y. 529.) “ When the sole object and general tendency of legislation is to promote the public health, there is no invasion of the Constitution, even if the enforcement of the law interferes to some extent with liberty or property.” (Matter of Viemeister, 179 N. Y. 235, 238; Health Department v. Rector, etc., 145 id. 32.)
The argument of the appellant that the statute discriminates against citizens of New York in favor of those of foreign States is without force. (Conner v. Elliott, 18 How. [U. S.] 591; Paul v. Virginia, 8 Wall. 168; Slaughter House Cases, 16 id. 36.)
It seems to me that section 104 of the Labor Law is a valid exercise of the police power by the Legislature. The bibs in question were wearing apparel within the meaning of the statute. The defendant should not be permitted to escape or the statute to be circumvented through technicalities in the nature of those raised by the appellant.
The judgment of conviction should be affirmed.
Clarke, P. J., and Dowling, J., concur; Laughlin, J., dissents.