without a license therefor as provided in article 7 of the statute, but that nothing therein contained shall apply to collars, cuffs, shirts or shirt waists made of cotton or linen fabrics that are subjected to the laundrying process before being offered for sale. Defendant contends that this section should be read in connection with section 104, and where it appears that the articles have been laundered that such laundry relieves defendant from the charge of violating the statute. Section 100 is entirely separate and distinct from section 104, and clearly refers to collars, cuffs, shirts and shirt waists used by adults. Section 104 is complete in itself.

I do not think there is anything in appellant's point that the statute (Labor Law, § 104) deprives the defendant, appellant, of liberty or property without due process of law. (U. S. Const., 14th Amendt., § 1. See, also, State Const., art. 1, $ 6.) As before stated, the statute was a legitimate exercise of the legislative power for the purpose of protecting the health of infants. (People ex rel. Nechameus v. Warden, etc., 144 N. Y. 529.) "When the sole object and general tendency of legisla tion is to promote the public health, there is no invasion of the Constitution, even if the enforcement of the law interferes to some extent with liberty or property." (Matter of Viemeister, 179 N. Y. 235, 238; Health Department v. Rector, etc., 145 id. 32.)

The argument of the appellant that the statute discriminates against citizens of New York in favor of those of foreign States is without force. (Conner v. Elliott, 18 How. [U. S.] 591; Paul v. Virginia, 8 Wall. 168; Slaughter House Cases, 16 id. 36.)

It seems to me that section 104 of the Labor Law is a valid exercise of the police power by the Legislature. The bibs in question were wearing apparel within the meaning of the statThe defendant should not be permitted to escape or the statute to be circumvented through technicalities in the nature of those raised by the appellant.

ute.

The judgment of conviction should be affirmed.

CLARKE, P. J., and DOWLING, J., concur; LAUGHLIN, J., dissents.

PAGE, J. (concurring):

I concur with Mr. Justice Laughlin that the defendant can raise the question of the constitutionality of the statute in this court. A criminal conviction of an offense arising under an unconstitutional statute would be contrary to law, and this court is empowered to reverse such a conviction. I concur, however, with Mr. Justice Merrell that the statute is constitutional, and that a department store or person conducting a business establishment, who has had manufactured any of the articles specified for the purpose of offering them for sale to the public is within the inhibition of the section and, therefore, vote to affirm.

- LAUGHLIN, J. (dissenting):

The appellant has been convicted under section 1275 of the Penal Law (as amd. by Laws of 1913, chap. 349) for violating the provisions of section 104 of the Labor Law (as amd. by Laws of 1913, chap. 260). He was the proprietor of the Belmont Embroidery Works, 2292 Arthur avenue, borough of The Bronx, which concededly was a factory within the contemplation of said section 104 of the Labor Law, and as such proprietor he contracted with one Theresa Arena to finish twenty-four dozen babies' bibs, at her apartment in a tenement house, at No. 2540 Cambrelling avenue, in the borough of The Bronx, and they were manufactured by her for the Belmont Embroidery Works pursuant to said contract, in her apartment which was used for living purposes. It is quite clear, I think, that these bibs constituted wearing apparel for children or infants within the provisions of said section 104 of the Labor Law. The facts plainly bring the case within the prohibition of said sections, and I have no doubt but that it was competent for the Legislature, under the police power of the State, and

* * *

as a health measure, to prohibit the manufacture of such wearing apparel in a tenement house apartment used for living purposes; but I am of the opinion that the section is unconstitutional and void on the ground that it only prohibits such manufacture of wearing apparel "for a factory," and such manufacture for department stores, and others, not having a factory, is not prohibited. A "factory" is defined by section 2 of the Labor Law (as amd. by Laws of 1917, chap. 694) as follows: "Whenever used in this chapter: * * * the term factory' includes any mill, workshop, or other manufacturing establishment and all buildings, sheds, structures or other places used for or in connection therewith, where one or more persons are employed at manufacturing, including making, altering, repairing, finishing, any article or thing in whole or in part, except dry dock plants engaged in making repairs to ships, and except power houses, generating plants, barns, storage houses, sheds and other structures owned or operated by a public service corporation, other than construction or repair shops, subject to the jurisdiction of the Public Service Commission under the Public Service Commissions Law. * * * Work shall be deemed to be done for a factory within the meaning of this chapter whenever it is done at any place, upon the work of a factory or upon any of the materials entering into the product of the factory, whether under contract or arrangement with any person in charge of or connected with such factory directly or indirectly through the instrumentality of one or more contractors or other third persons."

By the use of "factory" in said section 104 the Legislature necessarily meant a factory as so defined by section 2 of the same enactment. It is manifest that the danger to the public health which the Legislature attempted to prevent arises from children or infants wearing the garments, and that danger is precisely the same regardless of who has the wearing apparel thus manufactured in the tenement, or is the agency through which the wearing apparel is sold to the public. The statute,

however, limits the prohibition of such manufacture to manufacturing for a factory. It is, therefore, open to all, who have no factory, to procure the manufacture of such wearing apparel in such tenement house apartments and to sell the garments to the public. The statute, therefore, plainly discriminates between dealers in this class of wearing apparel in the same locality. The manufacture of such wearing apparel for factories only is prohibited while the manufacture in such places of the same class of wearing apparel for all other persons and to be used for the same purposes is not prohibited. If the Legislature had prohibited the manufacture of all such wearing apparel in such places, or of such wearing apparel intended for sale or distribution to the public, then the statute could be sustained for it would operate equally upon all dealers in such garments, but by limiting the prohibition to one class of such dealers, namely, those who have factories and place the orders for their factories or to orders placed by other factories, it has unjustly discriminated between citizens in the state by making an arbitrary classification which does not embrace all who plainly come within the classification attempted to be made, and the statute, therefore, violates the provisions of section 1 of the Fourteenth Amendment of the Federal Constitution, which provides that no state shall deny to any person within its jurisdiction the equal protection of the laws. (Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61; Patsone v. Pennsylvania, 232 id. 138; Matter of Jacobs, 98 N. Y. 98, 2 N. Y. Crim. 539; People ex rel. Farrington v. Mensching, 187 id. 16, 17.) The statute cannot be sustained on the theory that the Legislature deemed that the principal danger to the public health arises from such manufacture for factories because it is perfectly plain that the same danger arises regardless of who places the order or whether or not he has a factory and to sustain the statute would place the owners of factories at a serious disadvantage in competing with others in the manufacture and sale of such wearing apparel.

The learned deputy assistant district attorney, while maintaining the constitutionality of the statute, also contends that the defendant has waived his right to declare the statute unconstitutional by not taking the specific objection at the trial, and, as authority therefor, he cites People v. Ostrander (144 App. Div. 860) and Dodge v. Cornelius (168 N. Y. 242). The learned counsel for the appellant, answering this contention, says that the proceedings on the trial were informal and summary, and that the facts were not controverted; but that the prosecution was defended on the ground, as appears by the record, that the defendant could not be convicted under the law. The record shows that statements made by counsel for the defendant at the trial were to the effect that the defendant, if convicted, intended to appeal, and that he claimed that the statute, if applicable to the defendant, works a hardship for the reason that firms in New Jersey and in Europe are competing here in the market with the defendant and others similarly situated, and that the defendant, if required to manufacture wearing apparel in his factory, cannot compete with such competitors. Were it necessary to take the objection on the trial. I think it was sufficiently taken, for the sole ground on which the prosecution was defeated was that the defendant, who conceded the facts, could not be convicted under the statute. (See Massachusetts Nat. Bank v. Shinn, 163 N. Y. 360; People ex rel. Bush v. Houghton, 182 id. 301.) Moreover, the decisions on which the People rely were in civil actions and so far as the opinion in the case in the Court of Appeals tends to hold that the objection should be taken on the trial, it must be borne in mind that the Court of Appeals was considering its limited jurisdiction. (People v. Sherlock, 166 N. Y. 180; Fries v. N. Y. & Harlem R. R. Co., 169 id. 270; People v. Pindar, 210 id. 191, 31 N. Y. Crim. 13; People v. Bresler, 218 id. 567, 35 N. Y. Crim. 104; People v. Shattuck, 194 id. 424.) This court, however, by the express provisions of section 527 of the Code of Criminal Procedure, is authorized to grant a new trial