179 N.E. 313 | NY | 1932
The plaintiff served the city of New York at times during the years 1926 to 1929 as a foreman of bridgemen and riveters. The uncontradicted evidence is that the prevailing rate of wages for bridgemen and riveters was $12 a day in the first half of 1926, *115 and $14 a day thereafter. The uncontradicted evidence also is that the prevailing rate of wages for foremen was $3 a day additional. This additional wage the plaintiff never got.
Section
The question is whether the plaintiff is a "laborer, workman or mechanic" within the meaning of this statute. If he is, he has been underpaid, and the judgment which was rendered in his favor for a balance conceded to be due must be increased accordingly.
The plaintiff was a bridgeman and riveter, and a member of the Iron Workers' Union. He did not cease to be a bridgeman or riveter, or to be employed in that trade, when assigned to act as foreman. He was one of a gang of workmen, though he was charged with special duties. He held the men to their job, and "when necessary, jumped in and helped them." He was exposed to nearly all the risks that cause the occupation of a bridgeman or a riveter to be attended with exceeding hazard. He did not take himself out of his calling by becoming an overseer too.
We think a man so employed must be held to be a workman "if we take words in their plain popular meaning, *116
as they should be taken here" (HOLMES, J., in United States v.Kirby Lumber Co.,
The defendant lays the stress of its argument on the decision of this court in Matter of Stryker (
The present statute is an attempt by the State to hold its territorial subdivisions to a standard of social justice in their dealings with laborers, workmen and mechanics. It is to be interpreted with the degree of liberality essential to the attainment of the end in view. If the plaintiff was not a workman within the meaning of the requirement of the statute for the payment of the prevailing wage, he was not a workman within the meaning of the requirement of an eight-hour day. The aim of the statute would surely be thwarted if that construction should prevail.
The judgment of the Appellate Division should be reversed and that of the Trial Term modified by increasing the plaintiff's recovery to the sum of $4,148.50, with interest from August 9, 1929, and costs in all the courts.
POUND, CRANE, KELLOGG and O'BRIEN, JJ., concur; LEHMAN and HUBBS, JJ., dissent.
Judgment accordingly.