Opinion
October 28, 1943.
Appeal from the Municipal Court of the City of New York, Borough of Manhattan, GOODMAN, J.
Herman Jervis for appellant.
Frederick E. Weinberg for respondent.
MEMORANDUM
Plaintiff is not entitled to the coverage of the Fair Labor Standards Act of 1938 (U.S. Code, tit. 29, § 201 et seq.). The tenants of the building where plaintiff is employed are not engaged in the production of goods for commerce. Although a substantial number of defendant's tenants are engaged in commerce within the meaning of the Act plaintiff's activities as an elevator operator are not in or so closely related to the movement of the commerce as to be a part of it within the meaning of the Fair Labor Standards Act. (See McLeod v. Threlkeld, 319 U.S. 491; Johnson v. Dallas Downtown Development Co., 132 F.2d 287; Stoike v. First Nat. Bank, 290 N.Y. 195.) Kirschbaum v. Walling ( 316 U.S. 517) holds nothing to the contrary. There some of the employees were elevator operators, but the tenants in the building were found by the court to have been engaged in the production of goods for commerce.
Judgment reversed, with thirty dollars costs, and complaint dismissed on the merits, with costs.
HAMMER, SHIENTAG and HECHT, JJ., concur.