136 N.Y.S. 786 | N.Y. App. Div. | 1912
Lead Opinion
Plaintiff is an incorporated village and the defendant company is a foreign corporation authorized to engage in this State
Plaintiff in its complaint alleges that it has been damaged to an amount beyond, the penalty of the bond by reason of the failure of defendant contractors to fully perform and complete then contract and demands judgment against each defendant for the full amount of the bond. The referee directed judgment dismissing the complaint upon the merits, with costs. Defendant surety company caused a separate judgment in its favor to be entered dismissing the complaint as to it, with costs; and it is from this judgment that this appeal is taken.
There is little dispute as to the facts, and the case presents only so much of the evidence as relates to two findings of fact,' to which exception was taken by plaintiff. Plaintiff at all times in making the contract, in overseeing its performance and directing the payments made by plaintiff thereon, acted by its board of sewer commissioners. • Their authority to so act and represent the plaintiff as its officers for that purpose is not questioned. One of the findings to which exception is taken is to the effect that during all the time the contractors were engaged in the work upon the contract plaintiff’s officers, i. e., its sewer commissioners,' were aware that the contractors employed their men in the contract work ten hours each working day. The preceding finding that the contractors during the. whole period of their performance of the work under the contract employed substantially all the men worked thereon
The learned referee has found that the contractors violated the provisions of section 3 of the Labor Law (Gen. Laws, chap. 32 [Laws of 1897, chap. 415], as amd. by Laws of 1906, chap. 506; now Consol. Laws, chap. 31 [Laws of 1909, chap. 36], as amd. by Laws of 1909, chap. 292) by continuously working the men employed on this contract more than eight hours a day, with the full knowledge of plaintiff, although there was no “ extraordinary emergency caused by fire, flood or danger to life or property.” Under. these circumstances, as the section further provides, the contractors were not entitled to receive, nor the plaintiff to pay, nor authorize the payment
. Plaintiff, however, insists that this provision of the statute which would have precluded the contractors from enforcing against it their claims under the contract was solely for the benefit of plaintiff, and might furnish a defense, which it alone could urge, and which could, therefore, be waived by it. But in asserting this position the equally mandatory provision prohibiting it' from paying or permitting payment of the claims is overlooked. As the referee suggests, a valid waiver of the provisions of the statute could not in this case be established “ without in effect holding that a municipal corporation and a contractor by mutual action might abrogate the provisions of the statute and create a valid obligation of the municipality to pay for what' the law forbade payment to be made.”
That this section of the Labor Law and the method of its enforcement therein provided are constitutional was decided in People ex rel. Williams Eng. & Con. Co. v. Metz (193 N: Y. 148). Referring to the opinion then delivered we find (p. 159) this expression of the court’s decision: “ Our conclusion upon this branch of the case is that in view of the history of the amendment in question and the causes which led to it the Legislature now has power and had when the present Labor Law was enacted to fix and regulate the hours of labor on public work by limiting them to eight hours in one calendar day and to provide that when that limit is exceeded no officer of State or municipal government shall be permitted to pay therefor from-funds under his official control. ”
Appellant’s counsel insists that the referee’s decision was based upon an issue not tendered by the answer, because defendant did not in terms plead that the payments made by plaintiff to the contractors were prohibited by the statute. But to establish its case plaintiff was required both to allege and prove payment by it to the contractors of the sums in question. These payments were put in issue by the general denial in the
The presiding justice in his opinion, handed down herewith, takes the position that the contract between the village and the contractors, though it did not in fact contain the stipulations required by the statute, must yet be read, construed and treated as though they had in fact been written in it. Assuming this view is correct, the contract would then have provided expressly that it “shall be void and of no effect unless ” the contractors should comply with the provisions of the section. They did not so comply, as has been pointed out above. Even conceding that plaintiff could waive as to it its right to insist for that reason that the contract was void, and could consent that the contractors might continue their illegal manner of its performance, yet this concerted action by plaintiff and the contractors, of which the surety company had no knowledge, or notice, and to which it was in no way a party, could not alter, or impair, its rights, or enlarge, or change, its obligations as surety. The contract, performance of which it had guaranteed, was one to be performed in accordance with the statutory requirements. When these provisions were with plaintiff’s tacit consent continuously disregarded and violated by the contractors, then, as to the surety company, the contract became and was void, and no liability for non-performance of the contract remained; for, as to it, there was no longer any .contract to which its guaranty of performance could apply.
The judgment should be affirméd, with costs. .
All concurred, except McLennan, P. J., who dissented in an opinion.
Dissenting Opinion
There is substantially no dispute as to the facts in this case. On May 1,1907, the defendants Dingledine and Patten entered
The referee has found: “That the officers of the plaintiff during all of said time when the defendants Dingledine and Patten were so engaged in work upon the said contract were aware that the said defendants employed their men ten hours each working day.”
This he finds to be a violation of the provisions of section 3 of the Labor Law, on account of which violation the contractors were not entitled to receive, nor was any officer of the plaintiff entitled to pay, any sum for the work done upon the contract, and that any payments so made were unauthorized, and cannot for the purpose of this action be included as a part of the expenses to the plaintiff of the said work, and inasmuch as the further sums expended by the plaintiff are less than the contract price, the referee finds that the defendants are entitled to
Section 3 of the Labor- Law contains, among other things, the following provisions: “Eight hours shall constitute a legal day’s work for all classes of employees in this State except those engaged in farm and domestic service unless otherwise provided by law. This section does not prevent an agreement for overwork at an increased compensation except upon work by or for the State or a municipal corporation, or by contractors or subcontractors therewith. Each contract to which the State or a municipal corporation is a party which may involve the employment of laborers, workmen or mechanics shall contain a stipulation that no laborer, workman or mechanic in the employ of the contractor, subcontractor or other person doing or contracting to do the whole or a part of the work contemplated by the contract shall be permitted or required to work more than eight hours in any one calendar day except in cases of extraordinary emergency caused by fire, flood or danger to life or property. * * * Each contract for such public work hereafter made shah contain a provision that the same shall be void and of no effect unless the person or corporation making or. performing the same shall comply with the provisions of this section; - and no such person or corporation shall be entitled to receive any sum nor shall any officer, agent or employee of the State or of a municipal corporation pay the same or authorize its payment from the funds under his charge or control to any such person or corporation for work done upon any contract, which in its form or maimer of performance violates the" provisions of this section.” (Gen. Laws, chap. "32 [Laws of 1897, chap. 415], § 3, as amd. by Laws of 1906, chap. 506; now Consol. Laws, chap. 31 [Laws of 1909, chap. 36], § 3, as amd. by Laws of 1909, chap. 292.)
I think the finding of fact made by the referee as to the knowledge of the plaintiff and its officers concerning the violation of this section of the Labor Law by the contractors is amply supported by the evidence, but I cannot agree with the conclusion reached by the learned referee that under the cir
I, therefore, conclude, that the judgment appealed from should be reversed and a new trial granted, with costs to the appellant to abide the event.
Judgment and order affirmed, with costs.