OPINION OF THE COURT
The single issue presented on this appeal is whether the
Plaintiffs brought suit under section 1983 of title 42 of the United States Code for judgment declaring that section 8 of chapter 77 of the Laws of 1977 is invalid as violativе of the minimum wage provisions of section 17 of article I of the New York State Constitution because it requires emрloyable home relief recipients to work an average of three full working days per week regardless оf the monthly benefits which they receive, and as violative of the equal protection and due process clauses of sections 6 and 11 of article I of the State Constitution and of the Fourteenth Amendment of the United States Constitution. In addition, plaintiffs sought class action certification and equitable restitution, and also requested counsеl fees under section 1988 of title 42 of the United States Code.
After defendant answered, plaintiffs moved for summary judgment and asked the court to retain jurisdiction for enforcement of the judgment and for an assessment of costs and counsеl fees. Special Term granted the motion to the extent of declaring section 8 of chapter 77 of the Laws of 1977 unconstitutional, but denied all other relief.
Because plaintiffs had been successful in an important aspect of their action, that is, the declaration that section 8 was unconstitutional, they assert on this appeаl that the court erred in denying their application for judgment requiring defendant to pay their attorney’s fees in the action. Although the judgment does not specify whether attorney’s fees were denied as a matter of law or in the еxercise of discretion, the memorandum which the court wrote in rendering its decision makes it clear that the application was denied as a matter of law, to wit, that section 1988 of title 42 of the United States Code does not apply in this State proceeding. We reach the contrary conclusion.
In considering this issue we start with the proрosition that in general in the United States the successful party in an action cannot require the loser to pаy his attorney’s fees (Alyeska Pipeline Co. v Wilderness Soc.,
Prior to the 1976 amendment of sectiоn 1988 it was held that State courts have concurrent jurisdiction with the Federal courts with respect to actions under sеction 1983 of title 42 of the United States Code (Clark v Bond Stores,
Thus it is apparent that as a matter of policy, to facilitatе the enforcement of the rights of citizens under section 1983 of title 42 of the United States Code, Congress has directed that the counsel fees incurred in such enforcement may be recovered from the defendant. In other words, the рurpose of the 1976 amendment of section 1988 was to encourage the private citizen to take action, as a "private attorney general”, to enforce civil rights laws (see Civil Rights Attorney’s Fees Awards Act of 1976, US Code Cong & Admin Nеws, 1976, vol 5, pp 5908, 5909-5910) and the law should be construed to effectuate its purpose (see Kokoszka v Belford,
It is not significant, with respect tо the issue of attorney’s fees, that in this case Special Term based its decision on a
The matter of the award of counsel fees under the amendment, however, lies within the sound discretion of the court (Cooper v Lombard,
Cardamons, J. P., Simons, Dillon and Schnepp, JJ., concur.
Judgment unanimously modified, on the law, and, as modified, affirmed, with costs to petitioners, and matter remitted to Supreme Court, Orleans County, for further proceedings in accordance with opinion by Wither, J.