(dissenting). This action is brought by the plaintiff in behalf of himself and thirty-three other employees of the defendant to recover pay and a half for overtime worked by them in excess of the forty-four-hour week prescribed by the United States Fair Labor Standards Act of 1938 (U. S. Code, tit. 29, § 216) together with liquidated damages under the act.
The facts are stipulated. Defendant had a contract with the New York Central Railroad Company as lessee of the Boston and Albany Railroad Company for the construction of new abutments under two railroad bridges and repairing the substructures of two other bridges. These abutments had been completely washed out and destroyed and the substructures of the other bridges had been damaged by the flood of September, 1938. The construction of the new abutments constituted about two-thirds of the total work performed by the defendant under this contract and the repairs of the substructures of the other two bridges constituted the remainder of the work. The Boston and Albany Railroad operated trains between New York and Massachusetts over these four bridges and its tracks were carried on the superstructures of all of the bridges while the new abutments were being built at two of the bridges and the repairs were being made to the substructures of the other two, but the new abutments were not used to support the superstructures of the two bridges, nor the railroad roadbed, nor by the railroad company in any way at any time while defendant was engaged in the performance of the work under the contract. After all of the work under the contract had been completed the railroad company inspected and accepted it and thereafter the railroad lowered the superstructures of the two bridges upon the new abutments and all of the bridges have been used by the railroad ever since and over which it has operated trams between New York and Massachusetts. In the performance of the work under the contract the plaintiff and the workmen whom he repre*669sents worked overtime in excess of forty-four hours per week. Apparently they were paid for this overtime at their regular hourly rate instead of the pay and a half for overtime claimed by them.
The plaintiffs base their claim upon the Federal Fair Labor Standards Act of 1938 (U. S. Code, tit. 29, chap. 8). Section 6 of this act (U. S. Code, tit. 29, § 206) provides that every employer “ shall pay to each of his employees who is engaged in commerce or in the production of goods for commerce, wages at ” certain rates. Section 7 (U. S. Code, tit. 29, § 207) provides that no employer shall, with certain exceptions not applicable here, “ employ any of his employees who is engaged in commerce or in the production of goods for commerce ” for a work week longer than forty-four hours during the first year from the effective date of the statute unless such employee receives compensation for his employment in excess of these hours at a rate not less than one and one-half times the regular rate at which he is employed. The term “ commerce ” as used in this statute is defined to include transportation, transmission or communication among the several States (§ 3 [U. S. Code, tit. 29, § 203]), or what would be commonly termed “ interstate commerce.” This case thus crystallizes upon a determination as to whether or not these employees were engaged in transportation among the several States, which is interstate commerce, for it is obvious that they were not engaged in the production of goods for interstate commerce.
That the railroad with which the defendant had its contract was engaged in interstate commerce is not and cannot be questioned. Likewise it is now no longer open to doubt that the construction of new bridges which may be later dedicated to use in interstate commerce is not in itself interstate commerce. Such construction is said to be local in its operations and not interstate. (Raymond v. C., M, & St. P. R. Co., 243 U. S. 43; General. Railway Signal Co. v. Virginia, 246 id. 500; McKee v. Ohio Valley Electric R. Co., 78 W. Va. 131; 88 S. E. 616.)
The case of Pedersen v. D., L. & W. R. R. Co. (229 U. S. 146) seems to be controlling here. It was there held that the work of keeping a railroad bridge in repair while used by a railroad in interstate commerce is so closely related to such commerce as to be in practice, and in legal contemplation, a part of it. The court said: “ That the defendant was engaged in interstate commerce is conceded, and so we are only concerned with the nature of the work in which the plaintiff was employed at the time of his injury. Among the questions which naturally arise in this connection are these: Was that work being done independently of the interstate commerce in which the defendant was engaged, or was it so closely *670connected therewith as to be a part of it? Was its performance a matter of indifference so far as that commerce was concerned, or was it in the nature of a duty resting upon the carrier? The answers are obvious. Tracks and bridges are as indispensable to interstate commerce by railroad as are engines and cars, and sound economic reasons unite with settled rules of law in demanding that all of these mstrumentalities be kept in repair. The security, expedition and efficiency of the commerce depends in large measure upon this being done. Indeed, the statute now before us proceeds upon the theory that the carrier is charged with the duty of exercising appropriate care to prevent or correct ‘ any defect or insufficiency * * * in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment ’ used in interstate commerce. But independently of the statute, we are of opinion that the work of keeping such mstrumentalities in a proper state of repair while thus used is so closely related to such commerce as to be in practice and in legal contemplation a part of it. The contention to the contrary proceeds upon the assumption that interstate commerce by railroad can be separated into its several elements and the nature of each determined regardless of its relation to others or to the business as a whole. But this is an erroneous assumption. The true test always is: Is the work in question a part of the interstate commerce in which the carrier is engaged? (See McCall v. California, 136 U. S. 104, 109, 111; Second Employers’ Liability Cases [Mondou v. New York, N. H. and H. R. R. Co.], 223 U. S. 6, 59; Zikos v. Oregon R. & Navigation Co., 179 Fed. 893, 897, 898; Central R. Co. of N. J. v. Colasurdo, 192 Fed. 901; Darr v. Baltimore & O. R. Co., 197 Fed. 665; Northern Pacific R. Co. v. Maerkl, 198 Fed. 1.) Of course, we are not here concerned with the construction of tracks, bridges, engines or cars which have not as yet become mstrumentalities in such commerce, but only with the work of maintaining them in proper condition after they have become such instrumentalities and during their use as such.”
The bridges which were being repaired by the plaintiff and others employed by the defendant had already been dedicated to and used in interstate commerce. They had become instrumentalities of such commerce. Keeping them in a usable condition was necessary to the interstate commerce in which the railroad was engaged. When portions of them were destroyed or no longer usable, it was necessary to replace them with new parts and the .installation of these new parts cannot be put in the same class as the building of a wholly new structure. We conclude, therefore, that the installation of these new abutments and repairs to the *671substructures were acts which were-so closely related to the interstate commerce in which the structures were already being used as to be a part of it.
The Fair'Labor Standards Act makes the employee’s duties the test as to whether the act applies. The fact that the railroad had entered into a contract for the repair of these bridges with an independent contractor, does not deprive workmen engaged in the work of the benefits of the act. (State v. Bates & Rogers Const. Co., 91 Wash. 181; 157 P. 482.) If this were not so, it would be possible for a railroad engaged in interstate commerce to thus contract with an independent contractor for the performance of many other of its operations in interstate commerce and thus avoid Federal jurisdiction over such operations. As was stated in the Pedersen case and quoted above: “ The true test always is: Is the work in question a part of the interstate commerce in which the carrier is engaged? ” The conclusion here seems irresistible that the workmen who were repairing these four railroad bridges were actually participating in the interstate business of the railroad. If these workmen were employed by the railroad itself there would be no question but that they were engaged .in interstate commerce, because they were repairing structures already being used in such commerce and such work was so closely connected with the interstate commerce of the railroad as to be a part of it. The intrinsic nature and indispensable character of such work to interstate transportation were not altered by the interposition of the fact that such work was being performed through an independent contractor. It was still as much a part of and necessary to interstate commerce as it would have been if the railroad were doing the work itself. If we are correct in this conclusion then clearly the men who were repairing the bridges came within the provisions of the Federal Fair Labor Standards Act as they were engaged in interstate commerce.
The judgment should be reversed on the law and facts, with costs, and judgment directed for the plaintiff.
Hill, P. J., concurs.
Judgment dismissing the complaint affirmed, with costs.