People ex rel. Rodgers v. Coler

• Citation: 59 N.E. 716,166 N.Y. 1
• Parties: PEOPLE ex rel. RODGERS v. COLER, City Comptroller.
• Decision Date: 26 February 1901
• Court: New York Court of Appeals

166 N.Y. 1

59 N.E. 716

PEOPLE ex rel. RODGERS

v.COLER, City Comptroller.

Court of Appeals of New York.

Feb. 26, 1901.

Appeal from supreme court, appellate division, First department.

Application by the people, on the relation of William J. Rodgers, for mandamus to Bird S. Coler, as comptroller of the city of New York. From an order of the appellate division (67 N. Y. Supp. 701) reversing an order of the special term denying the relator's motion for a peremptory writ of mandamus commanding the comptroller to deliver to him a warrant on the chamberlain of the city of New York for the payment of $2,863, the amount earned by the relator under a contract with the city for regulating and grading 135th street from Amsterdam avenue to the Boulevard, and granting relator's motion for the writ, defendant appeals. Affirmed.

The papers upon which the relator made the application show that on the 5th day of February, 1900, he made and entered into a contract with the city for regulating and grading that part of the street above described. The contract provided that, in order to prevent disputes and litigation, the chief engineer of highways should in all cases determine the amount and quantity of the several kinds of work which were to be paid for under the contract, and all questions in relation to his work, and the construction thereof; and that his estimate and decision should be final and conclusive upon the contractor, and a condition precedent to his right to receive any money under the contract. It is alleged that the relator proceeded to perform and carry out this contract, and prior to the application had performed the same according to his promise, and to the satisfaction of the commissioner; that subsequently the chief engineer in charge of the work and the commissioner of highways made their certificate in writing that there was earned under the contract, in accordance with the terms thereof, by the relator, and then payable to him, the sum of $2,863. This certificate was filed in the office of the comptroller, who thereupon drew his warrant on the chamberlain for that sum, but refused to deliver the same to the relator, or to make the payment under the contract. The refusal of the comptroller is based entirely upon the fact alleged that the relator, in the performance of the contract, violated certain provisions of the labor law (chapter 415, Laws 1897, as amended by chapters 192, 567, Laws 1899). The following are, in substance, the provisions of this statute so far as they have any relation to the present case:

(1) The wages to be paid for a legal day's work, as hereinbefore defined, to all classes of such laborers, workmen, or mechanics upon all such public work, or upon any material to be used upon or in connection therewith, 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. Each said contract hereafter made shall contain a stipulation that each such laborer, workman, or mechanic employed by such contractor, subcontractor, or other person on, about, or upon such public work shall receive such wages herein provided for.

(2) Each contract for public work hereafter made shall 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 act, and no such person or corporation shall be entitled to receive any sum, nor shall any officer, agent, or employé 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 manner or performance, violates the provisions of this section.

(3) Any officer, agent, or employé of this state, or of a municipal corporation therein, having a duty to act in the premises, who violates, evades, or knowingly permits the violation or evasion of, any of the provisions of this act, shall be guilty of malfeasance in office, and shall be suspended or removed by the authority having the power to appoint or remove such officer, agent, or employé, otherwise by the governor. Any citizen of this state may maintain proceedings for the suspension or removal of such officer, agent, or employé, or may maintain an action for the purpose of securing the cancellation or avoidance of any contract which, by its terms or manner of performance, violates this act, or for the purpose of preventing any officer, agent, or employé of such municipal corporation from paying or authorizing the payment of any public money for work done thereupon.

The contract was framed in compliance with these provisions of the law, and contains the following stipulation: ‘The wages to be paid for a legal day's work, as hereinbefore defined, to all classes of such laborers, workmen, or mechanics upon all such public work, or upon any material to be used upon or in connection therewith, 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 labor is performed, in its final or completed form, is to be situated, erected, or used. It is further agreed that each such laborer, workman, or mechanic employed by such contractor, subcontractor, or other person in, about, or upon such public work shall receive the wages hereinafter set forth. It is further agreed that this contract shall be void and of no effect unless the person or corporation making or performing the same shall comply with the provisions of the labor law. * * * The contract is to be void and of no effect unless the rate of wages specified in section three of said labor law is paid; and where laborers are employed preference is to be given to citizens of the state of New York, as provided in section thirteen thereof.’ The contractor paid to the persons employed by him in execution of the contract wages fixed as to amount by mutual agreement, and it is conceded that he paid all that was demanded of him, or that he agreed to pay. But, since it was conceded that the contractor did not in all cases pay the prevailing rate, the court at special term held that the contract and the law were violated, and that the relator was not entitled to the writ. The appellate division, by a divided court, reversed the order, and granted the relator's application, and from this order the corporation has appealed to this court.

Parker, C. J., and Haight, J., dissenting.

John Whalen, Corp. Counsel (Theodore Connoly and Terence Farley, of counsel), for appellant.

L. Laflin Kellogg, for respondent.

O'BRIEN, J. (after stating the facts).

There is no dispute with respect to the facts upon which this controversy depends. They are all admitted upon the record, and the appeal involves only questions of law. On the 5th day of February, 1900, the relator entered into a written contract with the proper administrative officer of the city of New York, whereby he undertook to regulate and grade a street. The law required that the work should be done by contract. It was a local improvement, the expense of which was ultimately to be charged to and paid by the local property owners. The city was the authority or agency to inaugurate the work, but, since it was for the benefit, in whole or in part, of private property, the owners or their property became liable ultimately for the cost. That the relator actually performed the work embraced in the contract is not denied or disputed. The certificate of the officer in charge of the street was, by the terms of the contract, to be the evidence of performance; and that certificate was given and filed with the defendant, as comptroller, showing that the contract price stipulated to be paid had been earned; and the only ground upon which the defendant has based his refusal to pay is that the relator has not kept a certain stipulation in the contract, which has no relation whatever to the actual performance of the work, but to matters entirely extraneous. In other words, the comptroller asserts that, while the relator has actually performed the work and earned the compensation under the contract, he has forfeited the right to demand payment, since he has not observed the terms of the labor law. He contends that it is not enough that the relator has performed the work according to the specifications of the contract, unless he performed it by the very means and agencies therein stipulated; that the means and agencies prescribed by the contract were not mere matters of form, but matters of substance. The duty enjoined upon the comptroller, the performance of which is commanded by the writ, was ministerial; and if the relator was not entitled to the writ absolutely, and as matter of legal right, the court below had power to grant it, in the exercise of discretion, and, having granted it, the action of the court in that respect is not reviewable here. People v. Board of Education of City of New York, 158 N. Y. 125, 52 N. E. 722; Same v. Van Wyck, 157 N. Y. 495, 52 N. E. 559. The court below had power to grant the writ, and, having the power, it is of no consequence, even if it be true, as alleged, that the reasons given for its action are untenable.

It must be admitted that the attitude of the city authorities in this respect presents a curious and anomalous situation, which involves some startling results. If they are right in the position taken, it must follow that the city must accept and receive the benefit of the improvements made by contractors to the extent of thousands or millions of dollars, and, though conceding that the work is honestly done precisely according to the specifications of the contract, yet it may refuse to pay if...