Booth & Flinn Co. v. Andrews

Appellate Division of the Supreme Court of New York

Booth & Flinn Co. v. Andrews

244 A.D. 1, 278 N.Y.S. 545, 1935 N.Y. App. Div. LEXIS 5742

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 13, 1935

StatusPublished

Cited by1 cases

This text of 244 A.D. 1 (Booth & Flinn Co. v. Andrews) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Booth & Flinn Co. v. Andrews, 244 A.D. 1, 278 N.Y.S. 545, 1935 N.Y. App. Div. LEXIS 5742 (N.Y. Ct. App. 1935).

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Opinion

Per Curiam.

This proceeding was previously before this court in May, 1933, and is reported sub nom. Matter of Booth & Flinn Co., Inc., v. Perkins (238 App. Div. 724). The Industrial Commissioner on July 15, 1932, had made an order and determination fixing the prevailing rate of wages in the city of Albany for carpenters, engineers of various classes and men setting and tying steel for reinforcing concrete and had directed Booth & Flinn, Inc., the contractor, to pay such wages on the public contract which it was then prosecuting in such city. On July 26, 1932, the contractor filed with the Industrial Commissioner a verified petition in writing asking that an investigation be conducted to ascertain the prevailing rate of wages for engineers in such city and that the determination of July 15, 1932, be modified accordingly. The petition alleged that there had been a change by way of reduction in the prevailing rate of wage for engineers since the previous determination. This request was ignored. Upon appeal to this court the determination and. order of July 15, 1932, was annulled. We then said that the denial of the application of July 26, 1932, was unjustified.

Upon the remittal a hearing was had at which it appeared that the Industrial Commissioner had made no investigation as requested by the complaint of July 26, 1932, and the hearing Commissioner ruled that the burden was on the contractor to present evidence in support of its petition for a new investigation. No evidence was offered on the new hearing. The minutes show only extended argument between counsel and the hearing Commissioner, marked by tactics of obstruction by petitioner’s attorney and an unreasonable refusal by the representatives of the Commissioner to make another investigation. The Commissioner ruled that all previous proceedings had before the annulment of his determination of July 15, 1932, should be again considered. He stated that he was now considering evidence which this court said was improperly excluded from consideration in the making of the previous determination and which he had held in his previous determination to be irrevelant. He then made a new determination identical in substance with his previous determination of July 15, 1932.

Subdivision 7 of section 220 of the Labor Law states that the fiscal officer must, on a verified complaint in writing of any person [3]*3interested, cause an investigation to be made to determine the prevailing rate of wages. This statutory requirement has been ignored by the Industrial Commissioner. He has given no heed to the contractor’s complaint of July 26, 1932, nor to the previous decision of this court that his denial was unjustified. Statutory reouirements may not be thus disregarded ad libitum by the Commissioner. The statute is intended to afford protection to the laborer and contractor alike. It is as much the duty of the Industrial Commissioner to determine the prevailing rate of wage when the contractor asks it as it is when such request is made by the laborer. The statute provides the machinery for a fair determination but there has been little effort to be fair in this instance.

Determination and order of September 17, 1934, annulled and matter remitted to the Industrial Commissioner to proceed in accordance with this opinion.

Hill, P. J., Rhodes, McNamee, Crapser and Bliss, JJ., concur.

Determination and order annulled, without costs, and matter remitted to the Industrial Commissioner to proceed in accordance with opinion.

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Per Curiam.

This proceeding was previously before this court in May, 1933, and is reported sub nom. Matter of Booth & Flinn Co., Inc., v. Perkins (238 App. Div. 724). The Industrial Commissioner on July 15, 1932, had made an order and determination fixing the prevailing rate of wages in the city of Albany for carpenters, engineers of various classes and men setting and tying steel for reinforcing concrete and had directed Booth & Flinn, Inc., the contractor, to pay such wages on the public contract which it was then prosecuting in such city. On July 26, 1932, the contractor filed with the Industrial Commissioner a verified petition in writing asking that an investigation be conducted to ascertain the prevailing rate of wages for engineers in such city and that the determination of July 15, 1932, be modified accordingly. The petition alleged that there had been a change by way of reduction in the prevailing rate of wage for engineers since the previous determination. This request was ignored. Upon appeal to this court the determination and. order of July 15, 1932, was annulled. We then said that the denial of the application of July 26, 1932, was unjustified.

Upon the remittal a hearing was had at which it appeared that the Industrial Commissioner had made no investigation as requested by the complaint of July 26, 1932, and the hearing Commissioner ruled that the burden was on the contractor to present evidence in support of its petition for a new investigation. No evidence was offered on the new hearing. The minutes show only extended argument between counsel and the hearing Commissioner, marked by tactics of obstruction by petitioner’s attorney and an unreasonable refusal by the representatives of the Commissioner to make another investigation. The Commissioner ruled that all previous proceedings had before the annulment of his determination of July 15, 1932, should be again considered. He stated that he was now considering evidence which this court said was improperly excluded from consideration in the making of the previous determination and which he had held in his previous determination to be irrevelant. He then made a new determination identical in substance with his previous determination of July 15, 1932.

Subdivision 7 of section 220 of the Labor Law states that the fiscal officer must, on a verified complaint in writing of any person [3]*3interested, cause an investigation to be made to determine the prevailing rate of wages. This statutory requirement has been ignored by the Industrial Commissioner. He has given no heed to the contractor’s complaint of July 26, 1932, nor to the previous decision of this court that his denial was unjustified. Statutory reouirements may not be thus disregarded ad libitum by the Commissioner. The statute is intended to afford protection to the laborer and contractor alike. It is as much the duty of the Industrial Commissioner to determine the prevailing rate of wage when the contractor asks it as it is when such request is made by the laborer. The statute provides the machinery for a fair determination but there has been little effort to be fair in this instance.

Determination and order of September 17, 1934, annulled and matter remitted to the Industrial Commissioner to proceed in accordance with this opinion.

Hill, P. J., Rhodes, McNamee, Crapser and Bliss, JJ., concur.

Determination and order annulled, without costs, and matter remitted to the Industrial Commissioner to proceed in accordance with opinion.

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244 A.D. 1, 278 N.Y.S. 545, 1935 N.Y. App. Div. LEXIS 5742, Counsel Stack Legal Research, https://law.counselstack.com/opinion/booth-flinn-co-v-andrews-nyappdiv-1935.

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