Opinion
March 8, 1950.
Appeal from Schenectady County Court.
Present — Foster, P.J., Heffernan, Brewster, Bergan and Coon, JJ.
The conviction followed a jury trial at which there was no substantial dispute as to the facts. The defendant operated a cigar and newsstand in the lobby of a hotel. Its exclusive business was selling merchandise consisting of newspapers, magazines, tobacco, drug sundries and novelties. Defendant had exclusive possession of a room to the rear of the stand where it stored its supplies and through which entrance was gained to the building from the outside. Defendant hired and paid its employees, fixed their hours of employment and had exclusive control of directing their duties entirely independent of the hotel management. A percentage of the gross profits was paid to the hotel for rental of defendant's quarters. It is the contention of the defendant that section 182 Lab. of the Labor Law, relating to the employment of females in hotels and restaurants and which does not impose the ten o'clock restriction here involved, should apply. The defendant is conducting an independent merchandising business which comes well within the definition of "mercantile establishment" found in subdivision 11 of section 2 Lab. of the Labor Law. Its status as such is not altered by the fact that its business is physically located in a building in which a hotel is also operated by another. (See People v. Luna Amusement Co., 178 App. Div. 797.) Judgment of conviction unanimously affirmed.