For twelve days this locomotive, with driving wheels and other parts removed to the machine shop and undergoing thirty-two items of repairs, stood idle in the round-house. During that time it remained a useless thing, incapable of allocation to commerce of any kind. It was completely removed from service and, therefore, under the decisions of the Supreme Court, no longer an instrument of interstate commerce. An engine laid up for repairs for a duration no longer than three days ceases to be such an instrument. Its character is not affected by the fact that on the day before its cessation from actual use it was employed in commerce between the States and that immediately upon its restoration it might again be engaged in the same traffic. (Minneapolis St. L.R.R. Co. v. Winters, 242 U.S. 353.) Equipment, accustomed to be used exclusively in such operations, when partially dismantled for repairs over a considerable length of time, is deemed to be withdrawn from service. (IndustrialAccident Comm. v. Davis, 259 U.S. 182.) This court's opinion in the case before us does not otherwise hold. The majority deem it unnecessary to determine the question.
Since the object upon which plaintiff was engaged at the time of his injury did not then constitute a medium through which any kind of commerce could be conducted, difficulty insuperable as it seems to me, is encountered in allotting to him a place in transactions affecting interstate commerce. The character of his employment on other occasions is immaterial, says the Supreme Court, and the true test relates to the nature of service rendered by him when his injury is suffered. (Illinois Cent.R.R. Co. v. Behrens, 233 U.S. 473, 478; Shanks v. D., L. *Page 434 W.R.R. Co., 239 U.S. 556, 558.) The general rule as announced in the Shanks case is quoted in this court's opinion on this appeal but its application by the Supreme Court in that case now requires, in my view, a similar application by us. Shanks was a mechanic, generally but not exclusively, employed in the repair of locomotives used in interstate transportation. At the time of his injury he was engaged in relocating a shaft in the shop which transmitted power to machinery for repairing engines used in interstate transportation. The Supreme Court, affirming the judgment of this court, decided that his work was too remote from interstate transportation to be practically a part of it. In the present case, plaintiff for two hours had worked on the driving wheels of a locomotive which for twelve days was entirely separated from any activity in respect to transportation. Not only had these parts been removed from the engine and the round-house but they had been taken to the "back shop" and had not yet been again attached to the engine. The rule in theShanks case has been applied by this court in Conklin v.N.Y.C.R.R. Co. (238 N.Y. 570) and Matter of Morini v. ErieR.R. Co. (253 N.Y. 539). Such decisions as Erie R.R. Co. v.Collins (253 U.S. 77) and Erie R.R. Co. v. Szary (253 U.S. 86), cited in the prevailing opinion, are readily distinguishable. There the workmen at the time of their injuries were employed in duties directly affecting both interstate and intrastate transportation. Here plaintiff's work had no relation to commerce of either kind. His energies were directed toward an object which was not an instrument of commerce. Neither can I see the application to these facts of the principle controlling the decision in N.Y.C.R.R. Co. v. Marcone (281 U.S. 345), a case cited in the prevailing opinion. The engine in that case, unlike the one now under consideration, had not been withdrawn from service. It had been temporarily run into the round-house and no repairs were made upon it. Simply it was *Page 435 oiled, and the deceased had completed his work on it only a few minutes before his death.
CARDOZO, Ch. J., POUND, CRANE and LEHMAN, JJ., concur with HUBBS, J.; O'BRIEN, J., dissents in opinion in which KELLOGG, J., concurs.
Judgment affirmed.