Balch v. . N.Y. and Oswego Midland R.R. Co.

Allen, J. By the general railroad act of 1850 (Laws of 1850, chap. 140, § 12), a claim is given against a railroad corporation, for the indebtedness of a contractor to any laborer, for thirty or any less number of days’ labor,- performed in constructing the road of such corporation. The act requires the laborer to give notice, within a limited time, of the hum- *524 her of days’ labor for which the claim is made. The notice must state, among other things, the amount and number of days’ labor, and the time when the same was performed. The terms “ laborer ” and “ labor ” were used in their ordinary and usual sense; and the provision was intended to secure the common laborer, one who earned his daily bread by his toil, a compensation for his own work. The terms necessarily imply the personal service and work of the individual designed to be protected. The term “ laborer ” cannot be construed as designating one who contracts for and furnishes the labor and service of others, or one who contracts for and furnishes one or more teams for work, whether with or without his own services or the services of others to take charge of the teams while engaged in the service. When once an enlarged meaning is given to the words “ laborer ” and “ labor,” as used in the statute, one more extensive than that given by lexicographers, or than is popularly given to them, and so as to include those who perform work by themselves as well as by agents and servants, or themselves with a team, or with mechanical appliances, there will be little difficulty in the effort to give a liberal effect to the statute to bring within its terms all who, in any way, contribute to the construction of the road by furnishing labor of others, or in any form and by any means, and without limit as to the amount or character of the labor, subject only to the limitation of thirty days for its performance. If a man is entitled to the benefit of the statute who furnishes one team, the man who furnishes fifty is within the same rule; and the fact that the man labors with, or drives his team, or by himself and his servants drive all his teams, cannot affect the principle. In neither case is the labor performed by the team that of a laborer. (Conant v. Van Schaick, 24 Barb., 87; Ericsson v. Brown, 38 id., 390; both approved in Coffin v. Reynolds, 37 N. Y., 640.) In the latter case the meaning of the same terms used in an analogous statute was restricted, and held not to include skilled artificers or those rendering service requiring skill, or such as are not regarded as common, ordi *525 nary labor, and the act was confined in its operation and effect to manual labor not requiring skill. The principle of these cases should be decisive of this. The court, in Aiken v. Wasson (24 N. Y., 482), says: “It is obvious, from the nature and terms of this and other provisions of the act, as from a general policy indicated by analogous statutes, that the legislature intended to throw a special protection around that class of persons who should actually perform the manual labor of the company.” They say, further, that it would not harmonize with the general scope and object of the act to give the words their broadest interpretation. In the two opinions delivered in this court in Atcherson v. Troy and Boston R. R. Co. (6 Abb. Pr. R., N. S., 329), the very point involved here was affirmed in accordance with the judgment of the Supreme Court in this case, and the judgment of the court was in accordance with the result of these opinions. The learned reporter of the court at that time, speaking from his notes, says that the precise point was not decided by the concurring opinion of five judges. But the statement of the judges, as well as their argument, is high evidence of the law, and their opinions are entitled to great respect, even if they were not adopted by a sufficient number of judges to give them authority as the judgment of the court, there being in the case other grounds for the decision actually given. It does appear that the judgment was so modified as to give the plaintiff a judgment for his own labor only, on the ground that no objection was made to that in the court below. It is not allowable, and would lead to mischief, in the interpretation and application of statutes, to give this statute a latitudinarian construction, which would include within it the claim of the plaintiff. It is not warranted by principle, and the authorities are opposed to it. I am for an affirmance of the judgment. Ch. J., Allen, Folger, and Rapallo, JJ., concur; G-rover and Peckham, JJ., dissent. Judgment affirmed.