Two questions are here presented: (a) Were the several persons represented by plaintiff engaged in interstate commerce; (b) were these several persons, hereinafter referred to as plaintiffs, engaged in the production of goods for commerce.
The appeal here is taken from a judgment dismissing the complaint upon the merits in an action brought by plaintiff Pedersen, individually, and as representative of certain other former employees of defendant, to recover overtime wages and an equivalent amount as liquidated damages pursuant to the provisions of sections 7 and 16 of the Federal Fair Labor Standards Act of 1938 (U. S. Code, tit. 29, chap. 8, §§ 201-219). The action was submitted to the court below upon an agreed statement of facts. As lessee of the Boston and Albany Railroad the New York Central Railroad Company operated trains between New York and Massachusetts over four bridges located on the railroad right of way in the town of Chatham. In September, 1938, the abutments of two of said bridges were completely destroyed by flood, and the substructures of the other two bridges were damaged. The defendant is an independent contractor engaged in general construction work. He entered into a contract with the railroad company for the construction of new abutments under the two bridges destroyed and for the repairing of the substructures *667of the two damaged bridges. Plaintiffs were employed by defendant on this work. . During the erection of the new abutments and the completion of the repairs to the substructures of the other bridges, the tracks of the railroad were carried on the superstructures of all of the four bridges, but the said new abutments were not used to support such superstructures nor the railroad bed, nor were said abutments used by the railroad company in any way during the course of the work being performed by defendant under its said contract.
While the railroad company was obviously engaged in interstate commerce, the defendant was an independent contractor employed by the railroad to perform work clearly local in its character and separate and distinct from such commerce. (Browning v. Waycross, 233 U. S. 16, 22.) Plaintiffs were at no time employed by the railroad company. We have no such situation as found in Pedersen v. Delaware, Lackawanna & Western R. R. Co. (229 U. S. 146), for there the work was being prosecuted by a railroad engaged in interstate commerce and the work was so clearly connected with it as to be a part thereof. Here, the defendant was not engaged in interstate commerce and was simply performing local construction work which was neither an interstate occupation nor commerce. (General Railway Signal Co. v. Virginia, 246 U. S. 500.) Interstate commerce means interstate commercial intercourse, and while defendant, pursuant to its contract, was engaged in work upon an instrumentality of interstate commerce, the performance of such work does not constitute such commerce. (McKee v. Ohio Valley Electric R. Co., 78 W. Va. 131; 88 S. E. 616.)
The remaining question as to whether or not plaintiffs were engaged in the production of goods for commerce must necessarily be answered in the negative. The construction of new abutments and the making of repairs to the substructures of the railroad bridges did not constitute “ the production of goods for commerce ” within the meaning of the act. From the definition of the term “ goods ” as found in the act,(no inference may be drawn that these plaintiffs were engaged in the production of goods, products or commodities for commerce. Plaintiffs were not employed in producing, manufacturing, mining, handling or in any other manner working on goods for commerce, nor performing any act of production as contemplated by section 3 of the act. In performing work upon these abutments and substructures, plaintiffs were not engaged in work upon a subject of commerce, but, at best, upon an instrumentality of commerce. They were engaged in the construction of bridge abutments and the repair of bridge sub*668structures and were not functioning in the production of goods destined for interstate shipment. (Fleming v. Arsenal Building Corporation, 38 F. Supp. 207; Killingbeck v. Garment Center Capitol, Inc., 259 App. Div. 691.) Nor were these plaintiffs employees of a manufacturer engaged in the production of goods for commerce. The defendant here was merely a contractor engaged in local construction and repair work for the railroad corporation.
The judgment dismissing the complaint upon the merits should be affirmed, with costs.
Crafser and Foster, JJ., concur; Bliss, J., dissents and votes to reverse, with an opinion in which Hill, P. J., concurs.