103 N.Y.S. 340 | N.Y. App. Div. | 1907
For the purposes of this review it will be assumed that the findings of fact made by the referee are supported by evidence, and only such other facts as are not controverted will be considered.
In March, 1899, the plaintiff was employed as a laborer by the defendant in its street department at a wage of one dollar and fifty cents' per day, and from that time until about the twenty-eighth day of December following he worked as such and received the wage fixed therefor; but during a considerable portion of that time, at his request and solicitation, he acted in the capacity of boss or foreman, and thus was relieved from doing hard manual labor, which he was unablé to do on account of his age (sixty years) and liis enfeebled physical condition.
At about the date last mentioned the plaintiff had the following conversation with the superintendent of defendant’s street department. The plaintiff said: “ I have had some experience in this work now, and if you need any more foremen I think I could handle á gang of men.” The superintendent said“ Do you think you. can, Farrell ? ” Plaintiff said: “ Yes, sir, I will try it any way,” and the superintendent replied: “All right, I guess we will need you.”
After that conversation the plaintiff was frequently put in charge of a gang of men by one of defendant’s inspectors and foremen who were sent to -different parts of the city to perform certain specified work. During all the time in question such men were assigned to the plaintiff by a regularly appointed inspector of foreman and such work was done under' their general directions and supervision. That continued until the 2d day of February, 1902, being 641 work- • ing days, and which is the time for which the plaintiff has been awarded one dollar per day additional pay.. Duiing'all that, time, as found by the referee, “ the plaintiff performed the duties of foreman in the street department of the defendant, with defendant’s knowledge and acquiescence.” During this time foremen in the department were regularly appointed, were designated as such and their wages had been duly fixed at two dollars and fifty cents .
The plaintiff was never a23pointed foreman, nor in any manner designated as such. USTo one representing the defendant ever hired him as foreman or agreed to pi ay him a foreman’s wages; he was not furnished a foreman’s badge,- but a laborer’s badge, which he wore during all the time he was in defendant’s employ; he was at all times carried upon the payrolls as a laborer, was assigned to one or the other of the regularly appointed foremen as such, and was subject to their orders. They, the other foremen, told him what to do and he did it. He reported to them and not to the superintendent or head of the department as they did. He was not furnished with a blackboard in the supierintendent’s office to enable him to give orders and directions to the men, and during the entire time he was only piaid a laborer’s wages, viz., nine dollars per week, which he received each Saturday and accepted in full payment of the services rendered. He accepted such wages without protest or complaint, excepot that he stated from time to time that he ought to have more or that he was not receiving enough, but keqit right on accepting laborer’s wages and each week receipted in full for the same with full knowledge of all the facts. He knew what a laborer’s wages • were and that he was receiving.the same; he knew what a foreman’s wages were and that he was not receiving such wages; he knew that he had asked for foreman’s pay and it had been refused; he knew that he was not regarded as a foreman and that the defendant did not understand or expect that he was to receive a foreman’s pay.
Under such state of facts we think the plaintiff is not entitled to recover any sum in addition to laborer’s wages, which, concededly, he has received and receipted for.
If respondent’s contention is correct, perchance a common laborer performs duties similar to those of another employee of - higher rank for a day or a week, with the consent and acquiescence of the municipality, there is no way to avoid the payment of the higher wages, no matter what the agreement or understanding between'the parties.
The plaintiff, under the facts disclosed by the record, has waived all right which he may have had to compel the defendant to pay him foreman’s wages.
In Ryan v. City of New York (177 N. Y. 271) the court said': “ How,£ it is well- settled by authority that a man may waive any right that he has, whether secured to him by contract, conferred on him. by statute or guaranteed him by the Constitution.’ ’ * * * And the legal effect of plaintiff’s action in accepting from'-time to time during a period of six years, without protest, the wages paid to him by the city was to-waive any claim that he might have had at the time to insist that the employing officer should fix his rate of compensation at a greater sum than he did.”
And in a concurring opinion by Judge O’Brien he said (p. 280): ££ When a servant sues the master for wages, . alleging that he worked by the day for more than six years, and was paid for each day’s work at the rate of three dollars per day, and makes no claim or allegation that he ever asked any more, or ever objected on the ground that he had not been paid enough, or that he reserved the right to demand more-in the future, or that there was fraud or mistake in the dealings, the legal conclusion from the facts must be that there was a full settlement between the parties-or an agreenlent as to the rate of wages, Or a waiver of any other claim. (McCarthy v. Mayor, etc., of N. Y., 96 N. Y. 1.) I understand that there is no difference of opinión iú this court on this point, and if not, then
We think this court has construed the law adversely to respondent’s contention in Matter of Burns v. Fox (98 App. Div. 507), in which it was said: “ If we should assume, however, that as an original proposition relator was entitled to demand the compensation of two dollars per day allotted to him for a day consisting of only eight hours, we think he has waived and lost his right to extra compensation for additional hours.
“ Whatever ¡penalty might be visited upon the employer seeking to violate the act in question, the relator undoubtedly had the right, if he saw fit, to waive the statutory provisions enacted for liis benefit, and we think that his receipt for his wages for a period of over four years, without objection to what he now claims were excessive hours, or claim to extra compensation therefor, amount to such waiver. (Ryan v. City of New York, 177 N. Y. 271.) ”
In Hobbs v. City of Yonkers (102 N. Y. 13) the plaintiff agreed in writing that if he were appointed treasurer of the defendant he would pay into the city treasury all fees and percentages received by him as such treasurer in excess of $2,000 per annum, and thereupon he was appointed and qualified and acted as such treasurer. By the law under which he was appointed he was entitled to one per cent on all payments made by him. Each year the plaintiff rendered an account of his receipts, retaining $2,000 as his.salary, and paying the surplus into the city treasury. Upon this basis his accounts were adjusted, he making no claim for any further compensation during his entire term, and at the close of his term rendered his final account as treasurer and paid over to his successor the balance remaining in his hands. The court held that while the common council lxhd no authority to change the compensation of the plaintiff which was fixed by law, and the agreement to that effect was inoperative for such purpose, yet the plaintiff had a right to release the city from all claims for services beyond the amount agreed upon, and that the accounts presented and settled were essentially accounts stated, and as such could not be disturbed except by action in equity for that purpose.
Drew v. Mayor (8 Hun, 443) was an action brought to recover the amount of certain balances claimed to be due on account of the
In'the case of Wilson v. City of New York (31 Misc. Rep. '693) it was held that where a clerk in the health department of' the defendant city accepted and .receipted for a lower salary than that
We think the cases cited by the respondent are not in conflict with those above referred to. People ex rel. Satterlee v. Board of Police (75 N. Y. 38) simply held that a board of officers having the power of appointment to an office cannot reduce the amount^ fixed by law as the salary of such office or make a binding contract with their appointee to perform the duties of .the office at a less sum.
In that case the salary of the relator was fixed by statute, and it was held that the police board had no power to reduce such salary or to compel the relator to receive a less sum than was provided for by statute, and also that the acceptance and discharge of the duties of such an office after appointment is not a waiver of a statutory provision fixing the salary thereof.
The case of Kehn v. State of New York (93 N. Y. 291), also cited by the respondent, is clearly distinguishable from the case at bar. In that case it was held that “ where the compensation of an employe of the State is fixed by statute it cannot be reduced by the State officer under whom he is employed.” The court said that he was not estopped from claiming the full compensation by the fact that he took the reduced pay for a portion of the time without objection, but that he was entitled to recover the difference.
The respondent insists that this court has decided the precise question involved in accordance with his contention, in the case of Schmitt v. City of Buffalo (48 App. Div. 634). That case was decided without opinion, and while in many of its features it was similar to the case at bar, there is this important distinction in the facts : In that case the referee found that the plaintiff did not know that his name was being carried upon the payroll as a laborer, and did not know that the services of assistant foreman had been fixed at two dollars and fifty cents per day when he received and receipted for the smaller wages. It was, therefore, properly held that the plaintiff in that case, not having knowledge of the essential facts, his acts in the premises did not constitute a waiver. At all events, in so far as the decision in the Schmitt case is in conflict with the decisions above referred to, it should be considered as overruled. I more readily reach such conclusion because
The judgment should be reversed and a new trial ordered, with ■costs to the appellant to abide.the event.
All concurred, except Robsou, J., who dissented.
Judgment reversed and new trial ordered, with costs to the appellant to abide event.