Campbell v. City of New York

52 N.E.2d 949, 291 N.Y. 461, 1943 N.Y. LEXIS 1017

Opinions

Lewis, J.

The statute law of this State requires that the wages of laborers, workmen and mechanics engaged upon public works shall be not less than the rate prevailing in the same trade or occupation in the locality where the public work is being performed. (Labor Law, § 220.)

On November 10, 1939, the Comptroller of the City of New York, having followed procedure set forth in section 220 id., filed in his office an order by which he determined that since January 1, 1935, the prevailing rate of wages for wiremen in the city was $9 a day. The plaintiff, a wireman, had been employed in the City Fire Department from January 1, 1935, to December 31, 1937, at a daily wage of $7.78, his total pay for that period having been $6,006.25. Claiming that during that period, according to the Comptroller’s prevailing rate of wage order of November 10, 1939, he should have been paid at the rate of $9 a day, or a total of $6,975., the plaintiff has instituted the present action to recover the difference, viz., $968.75. In its answer the defendant City pleads as a separate defense that it was under no obligation to pay the plaintiff a difference in wages for any period prior to January 1, 1938, because — “plaintiff did not prior to January 1, 1938, file any verified complaint with the Comptroller of the City of New York as required by § 220 of the Labor Law regarding the rate of wages paid to said plaintiff as a wireman.”

At Special Term — where the plaintiff moved to strike out the defendant’s answer and for summary judgment, and the defendant by cross motion applied for an order dismissing the complaint — the court denied defendant’s cross motion and granted plaintiff’s application for an order striking out the answer and allowing judgment for the plaintiff in the sum of $968.75. Upon appeal by the defendant the Appellate Division modified on the law and facts the order of Special Term and the judgment entered thereupon, by reducing the amount of such judgment to $652.50. Upon granting the defendant’s motion for permission to appeal to this court, the Appellate Division certified the question: “ Should the defendant’s motion for summary judgment have been granted? ”

Under statutory procedure an investigation to determine the prevailing rate of wages of a trade or occupation in a given locality, is made by the “ fiscal officer ” — in this instance the Comptroller of the City of New York — either on his own initiative or upon a “ verified complaint in writing ” filed with the fiscal officer by “ any person interested ”. In the latter event the fiscal officer “ must ” cause an investigation to be made. (Labor Law, § 220, subd. 7.). A “ verified complaint ” as applied to a complaint against a municipality, is defined as including “ a verified demand or verified notice of claim * * * filed with the fiscal officer * * * ” {id. § 220, subd. 5, par. d). The statute provides further (§ 220, subd. 8): “ * * * When a final determination has been reached, if the determination is in favor of the complainant and involves or relates to the rate of wages paid on such public work, the complainant or any other person affected may within three months after the service of notice of the filing of said final order institute an action against the person or corporation found violating this act for the recovery of the difference between the sum actually paid and the amount which should have been paid as determined by said final order, from and after the date of the filing of said verified complaint or of filing report of investigation made on bis own initiative with the fiscal officer as hereinbefore provided.” (Emphasis supplied.)

In the present case the Comptroller’s order of November 10, 1939, resulted from a statutory investigation conducted by that officer after five wiremen — not including the plaintiff — had duly filed on January 7, 1936, verified complaints relating to the prevailing rate of wages of wiremen. As the investigation thus prompted progressed, other wiremen — twenty-three in number — filed verified complaints with the Comptroller and thereby became parties to the proceeding. In due time, after the Comptroller had determined that the prevailing rate of wages for wiremen was $9 per day, the twenty-three wiremen who had filed complaints were paid the difference between $7J8 aüd $9 per day for the periods of time to which they were entitled as fixed by the effective dates mentioned in their verified complaints. The plaintiff is one of eight wiremen who filed no verified complaint.

Despite the plaintiff’s failure to file a verified complaint, he has instituted the present action to secure the difference between the prevailing rate of $9 a day, as fixed by the Comptroller’s order, and the per diem wage of $7.78 received by him from January 1, 1935, to December 31, 1937. In connection with the latter date it should be said that the plaintiff has been paid the difference in wages in arrears beginning the following day, January 1, 1938, on which date the city inaugurated the practice of providing in the budget that the compensation of employees such as wiremen be fixed “ at the prevailing rate ” of wages.

Although conceding that he was not one of those complainants whose verified complaints initiated the Comptroller’s investigation which in turn brought about the order of November 10, 1939, the plaintiff asserts that he is a “ person affected ” by such order and accordingly is entitled to recover the differential below the prevailing rate of wages, as determined by the Comptroller’s order, from the date when a verified complaint was filed by someone other than himself. We think the plaintiff’s argument disregards the language of a subsequent provision in section 220, subdivision 8, which allows ‘1 the recovery of the difference between the sum actually paid and the amount which should have been paid as determined by said final order, from and after the date of the filing of said verified complaint * * * (Italics supplied.) We construe the clause in italics as we did when the same statute was under consideration in Matter of Gaston v. Taylor (274 N. Y. 359, 366) — “ • * * under the statute the fiscal officer’s determination relates only to the enforcement of the city’s obligation from the date of the filing of the verified complaint. Favorable determination may form the basis fór a cause of action arising thereafter.” We do not construe the statutory clause “ the complainant or any other person affected ” as including a person ■ — such as the present plaintiff — who filed no verified complaint. (See Matter of Carr v. Kern, 279 N. Y. 42, 48.) As to that portion of the statute we have said — ‘ ‘ The meaning of the statute is hardly subject to doubt. An employee who initiates the invegtigation is a person ‘ affected ’ by the investigation who is entitled to notice. So is an employer who must pay the rate determined by the investigation. Other persons in similar employ are not, for though they may, if they choose, claim the benefit of a determination, yet if they receive no notice of the investigation they are not bound by the determination in the same sense as the employee who initiated the investigation. ’ ’ (Matter of Heaney v. McGoldrick, 286 N. Y. 38, 44.) The plaintiff has already received benefit from the Comptroller’s determination of November 10,1939, — a benefit prospective in character which entitled him as a wireman to be paid $9 per day from the date of the Comptroller’s determination.

We hold that it is the plaintiff’s failure to file a verified complaint which prevents his recovering benefits antecedent to the Comptroller’s order.

The orders and the judgments should be reversed and the defendant’s motion granted, without costs. The certified question is answered in the affirmative.