Vill. of Medina v. Dingledine

• Decision Date: 14 April 1914
• Parties: VILLAGE OF MEDINA v. DINGLEDINE et al.
• Court: New York Court of Appeals Court of Appeals

211 N.Y. 24

104 N.E. 1118

VILLAGE OF MEDINA

v.DINGLEDINE et al.

Court of Appeals of New York.

April 14, 1914.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Action by the Village of Medina against Frederick W. Dingledine and others and the Title Guaranty & Surety Company of Scranton, Pa. From a judgment of the Appellate Division (152 App. Div. 307,136 N. Y. Supp. 786), affirming a judgment on the report of a referee in favor of defendant, Title Guaranty & Surety Company, plaintiff appeals. Affirmed.

John J. Ryan, of Medina, for appellant.

George E. Dennison, of Utica, for respondent.

HISCOCK, J.

In May, 1907, the appellant, through its board of sewer commissioners, entered into a written contract with a firm of contractors to construct certain sewers for the price of $37,347 .50. Thereafter the respondent, in accordance with the requirements of said contract, entered into a bond as surety with the appellant in the penal sum of $18,673.75 for the faithful performance of said contract by the contractors. After performing a considerable amount of work and furnishing a considerable amount of materials in the performance of their undertaking said contractors became in default, and the appellant, as it was legally entitled to do, excluded them from performance of the contract and itself completed the latter at its own expense. Prior to doing this it had made payments to the contractors to the amount of $29,268.83, and, including these payments and the expense of the work which it performed in completing the contract, it has expended the sum of upwards of $7,000 over and above the amount to which the contractors would have been entitled for completing their work, and it seeks to recover this sum, together with certain penalties for delay from the respondent under the bond executed by it is aforesaid.

It is conceded, or at least undisputed, that the amount expended by appellant for the construction of said sewers, plus any sum which has accrued in its favor for penalties, does not exceed the contract price fixed for the construction and completion of such work, unless it is entitled to be credited with said sum of $29,268.83, paid to the contractors as aforesaid. If it be true that the amount thus expended by it, plus any possible sum due for penalties, does not exceed the price which it agreed to pay the contractors for constructing the sewers, it is plain that it has not suffered any damages for nonperformance of the contract which may furnish the basis for a claim against the respondent on its bond. The pivotal question whether it is entitled to be credited with the payments made to the contractors as a lawful expenditure in connection with the construction of the work involves a consideration and interpretation of section 3 of the Labor Law. Consol. Laws, c. 31. This section reads as follows: ‘Eight hours shall constitute a legal day's work for all classes of employés in this state except those engaged in farm and domestic service unless otherwise provided by law. This section does not prevent an agreement for over work 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 or a commission appointed pursuant to law 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 shall contain a provision that the same shall...