58 A.D. 347 | N.Y. App. Div. | 1901
In this proceeding an alternative writ of mandamus was granted, to which the comptroller of the city of New York made a return. The issues. raised by that return were brought on for trial at the
Upon the facts we think the referee correctly disposed of the controversy. The statute which it is claimed was violated provides that the wages to be paid for a legal day’s work “ shall not be less than the prevailing rate for a day’s work in the same trade or occupation in the locality within the state where such public work on, about or in connection with which such labor is performed in its •final or completed form is to be situated, erected or used.” To have made this statute applicable there must be proof that there Ayas a prevailing rate of wages, and also proof of what that prevailing rate was. This is necessarily a question of fact, and the evidence produced in this case illustrates the difficulty of determining that question. The workmen or mechanics upon whose labor the question arose in this case were dock builders working for the relator in constructing a dock for the city of New York; and it would appear from the testimony that employers of such workmen in this locality paid a varying rate of wages. The city of New York paid to its Avorkmen who were employed by it one rate, and various contractors who were .called as Avitnesses paid other rates. Certainly the sum fixed by the dock board as. the Avages for laborers that they employed cannot oe said to be the prevailing rate of wages paid to dock builders; nor is there such unanimity among the other employers of workmen of this character, from which there could be a finding that there Avas a “ rate of wages ” which preArailed in this locality. But, however that is, the referee has found that the relator had complied with all the requirements of section .3 of the Labor LaAV; that the prevailing rate of wages for a day’s work in the same trade and occupation in the locality where such work and labor were performed for dock builders during the months of June and July, 1900, was not less than twenty-two cents per hour ■ and not more than tAventy-seven and a half cents per hour, this seeming to be the range
The city also appealed from the order of the- Special Term granting to the relator an allowance of five, per cent upon the amount involved in this proceeding. We think that the court had no power in such a proceeding to grant an extra allowance. By section 208& of the Code it is provided that where an alternative writ -of mandamus- has been issued costs may be awarded as in an action. Section 3251 of the Code prescribed the costs to which a ¡rnrty to an action is entitled. Section 3252 of the Code provides that in certain actions a party, if he recovers costs, is entitled to recover in addition to the costs prescribed in section 3251, certain percentages to be estimated upon the amount found to be due. Section 3253 pro
It follows that the order granting the additional allowance must be reversed, with ten dollars costs and disbursements, and that motion denied, with ten dollars costs.
Rumset, O’Brien and Hatch, JJ., concurred; Van Brunt, P. J., dissented.
Order granting writ of mandamus affirmed, with costs. Order granting additional allowance reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.