#### William B. MacFarlane, Appellant, *v.*Mosier & Summers, and Others, Respondents.

Fourth Department,

July 8, 1913.

Labor Law — suit to cancel municipal contract for violation of eight-hour law by sub-contractor — violation prior to- execution of written contract.

Where in a suit brought pursuant to the provisions of section 4 of the Labor Law by a citizen of a city for the cancellation of a contract made by the defendant with the city for the erection of a school building upon the ground that a sub-contractor of the defendant permitted or required laborers to work more than eight hours per day in violation of section 3 of the Labor Law, it appears that, although at the time of the alleged violations the commissioner of public works had been duly authorized to enter into a contract with the defendant, the contract had not been reduced to writing and a bond filed as required by the city charter; that the execution of the written contract was not unduly delayed for the purpose of permitting any part of the work to be done without the statutory restrictions, and that the statute has not been violated since the execution of the written contract, and that the defendant was not aware of the violations of the statute, a judgment dismissing the complaint upon the merits should be affirmed.

Appeal by the plaintiff, William. B. HacFarlane, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Erie on the 20th day of February, 1913, upon the decision of the court after a trial at the Erie Special Term dismissing the complaint upon the merits.

*Irving W. Cole [Hamilton Ward,*attorney], for the appellant.

*John W. Ryan,*for the respondent, Hosier & Summers.

*Clark H. Hammond, Corporation Counsel [George E. Pierce*of counsel], for the respondents, city of Buffalo and others.

Robson, J.:

This action is brought pursuant to the provisions of section 4 of the Labor Law (Consol. Laws, chap. 31; Laws of 1909, chap. *84536), by a citizen of the city of Buffalo, to obtain the cancellation of a contract made by the defendant Hosier & Summers with the defendant city of Buffalo for the erection by the former of the Technical High School, and as further relief that the defendant Justice, as the comptroller of the city of Buffalo, be enjoined and restrained from paying to the defendant Hosier & Summers any moneys to apply upon said contract, and that the moneys already paid to Hosier *&*Summers upon said contract be refunded to the city by Hosier & Summers and the officers of defendant city who are defendants in this action. The ground upon which plaintiff seeks to base his cause of action is an alleged violation of section 3 of the statute (as amd. by Laws of 1909, chap. 292) in the “manner of performance” of the contract.

The complaint being, as has been said, based upon an alleged violation of section 3 of the Labor Law in the manner of performance of the contract which Hosier & Summers had with the city of Buffalo for the erection of this public building, it is important to determine whether, at the time of the violations alleged, there was in fact a contract between these parties. These violations all occurred between the 17th of April and the 1st day of Hay, 1912. The formal written contract was not in fact signed till Hay twenty-second, following. Plaintiff, however, contends that the contract was in fact made as early as April fourth, preceding.

There is no dispute that proper proceedings were had by the duly authorized city officials by which plans and specifications for the proposed building were duly adopted, a notice duly published calling for proposals or bids for the work of construction; that bids were received, and that it was duly ascertained by the commissioner of public works, upon whom rested the power and responsibility of the determination, that Hosier & Summers’ bid was that of the lowest responsible bidder. This bid was accompanied, as required by the terms of the advertisement, with a bond, conditioned in effect that if the bid was accepted the bidder would make the contract with the city according to the terms proposed in the advertisement for bids. But the legal scheme governing the letting of contracts of the class to which the contract in question belongs provided for a *846report by the commissioner of his determination to the common council without whose consent the contract could not be made. This was done in this instance and the commissioner of public works was duly authorized about April fourth to enter into the contract with Hosier & Summers. Plaintiff claims that at this point a complete contract was made between the city and the contractors. But a further charter provision required that all contracts of this class must be in writing and that a bond, to be duly approved by the mayor of the city, must also be furnished by the contractor providing in effect for the faithful performance of the contract. The advertisement for bids and the bid itself contemplated and provided for this exact procedure. Doubtless the common council, after duly authorizing its superintendent of public works to enter into this written contract, could not, nor could that official of his own motion, arbitrarily refuse to complete the business of making the contract by accepting a satisfactory bond of the contractor and signing a written contract conforming to the advertisement, the bid and its acceptance. Sufficient authority for this proposition may, I think, be found in the cases cited and reviewed in the prevailing opinion in *Molloy*v. *City of New Rochelle*(198 N. Y. 402). But a contract in form to bind the city as a contract between the parties for the actual construction of the building had not then been completed. The bidder was still required to furnish a satisfactory bond, which was thereafter to be formally approved, and the written contract was to be prepared and signed, for no other contract than a written contract in such case could be a contract between the parties as the charter of defendant city provides. I think, therefore, the trial court was right in hold. ing that at the time of the violations complained of defendants did not in the manner of performance of a contract with the city violate the provisions of section 3, for at the time of the violations alleged the contract had not yet come into existence. (He*pburn*v. *City of Philadelphia,*149 Penn. St. 335; *Water Comrs. of Jersey City*v. *Brown,*32 N. J. Law, 504; *Edge Moor Bridge Works*v. *County of Bristol,*170 Hass. 528; Dillon Hun. Corp. |5th ed.] § 810.)

The violations alleged occurred while a sub-contractor named *847Brown was engaged in excavating upon the site of the building. The particular violations alleged were that this sub-contractor permitted or required laborers engaged in the performance of that work to work more than eight hours a day. This excavation was a part of the work included in the specifications, and also in the written contract thereafter made. Brown had agreed with Hosier & Summers to do this work and began it soon after it was apparent that Hosier & Summers was to have the contract. Hosier & Summers paid him for this work and the work was thereafter included with that for which it received pay on estimates of work performed by it under its contract with the city. Appellant claims that, even though it be held there existed no actual contract between the city and the contractor until the written-contract was signed, yet when it was signed it related back to the time the commissioner of public works was authorized to enter into it for the city, and the .statute having been violated in the performance of a part of the work contemplated by the contract in the interim between the authorization and the making of the contract, the contract itself at once became void because of the previous violations. It does not seem that can be held to result" from these facts. It is conceded that after the written contract was in fact made no violations of the statute have been shown. The utmost that could justly be claimed as a result of the previous violations would be that the persons-who *“*permitted or required ” them could not recover for the work in doing which the violations occurred, the work having been done in anticipation of and not under the contract. But this is not the principal purpose of the present action. It attacks the validity of the whole contract.

No intimation is made that the execution of the written contract was unduly delayed for the purpose of permitting any part of the work contemplated to be done without the statutory restrictions as to the manner of performance. It is doubtless true that, if there were a basis for a suggestion that the execution of the contract was in fact delayed for the purpose, even incidentally, of avoiding the statutory prohibitions, it would be held, and properly enough, that the contractors had in fact violated the statute, and no contract, under those circum*848stances, should have been thereafter made with them, and, if made, it would have been void. But the good faith of defendants is not attacked.

I think also that the trial court held properly that, even conceding that the work being done by Brown, the sub-contractor, at the time of the violations alleged was done under the contract between the city and the contractors, the evidence does not show that any of these violations were required, or permitted, by the contractor, or even that they occurred with its knowledge or consent. It would seem to be a manifest injustice to hold that violations of the statute for which the contractor was not responsible, as having itself required or permitted them, or as having with actual knowledge, or under such circumstances as would properly charge it with constructive knowledge that violations of the statute were either required or permitted by others, who were engaged on the work, could properly be attributed to the contractor for the purpose of enforcing the drastic penalty of a forfeiture of the contract.

The opinion of the trial court on this branch of the case leaves nothing of importance to be said. (19 Misc. Rep. 460.)

The judgment should be affirmed, with costs.

All concurred.

Judgment affirmed, with costs. •