#### The People ex rel. William J. Rogers, Relator, *v.*Bird S. Coler, as Comptroller, etc., Respondent.

(Supreme Court, New York Special Term,

June, 1900.)

Municipal corporation — Contractor with it hound to pay prevailing rate of wages.

The Legislature has power to determine the rate of wages to be paid by a municipality to its employees.

Chapter 567 of the Laws of 1899, amending chapter 415 of the Laws of 1897, is constitutional, and is designed to secure the prevailing rate of wages, not only to those employed by a municipal corporation upon its public works, but also to those employed by contractors, with such a corporation, to do like work for it.

One who bids upon a city contract, containing a provision for the payment of the prevailing rate of wages, must be deemed to have assented to that rate, and where he has not subsequently paid it, he cannot compel the city to pay his claim for the contract work.

Application for a peremptory writ of mandamus.

Kellogg, Rose & Smith, for relator.

John Whalen, Corporation.Counsel (E. J. Freedman, of counsel), for respondent.

*79Leventritt, J.

This is an application for a peremptory writ of mandamus commanding the respondent to deliver to the relator a proper warrant on the City Chamberlain for the payment of an amount earned under the relator’s contract with the city of New York. The respondent has refused the warrant on the ground that the relator has failed to comply with the provisions of the Labor Law (chap. 415, Laws of 1897, as am’d by chap. 567, Laws of 1899), incorporated in his contract, in that he has not paid the prevailing rate of wages. The facts are undisputed, the relator resting his rights on the claim that the contract provision in question is unconstitutional, and is, therefore, to be disregarded.

The Law of 1897 provided that the prevailing rate of wages should be paid on all work done “ for the State or a municipal corporation, or for contractors therewith.” Although the provision applicable to the State or municipal corporation is omitted in the Law of 1899, the Appellate Division in the recent case of McAvoy v. City of New York, 52 App. Div. 485, held that the present statute intended to protect those who are employed by a municipal corporation on public works, as well as those who are employed by contractors, to do like work for a city. In that case the court say: “ The policy of the law is that laborers, mechanics and workmen employed upon public work shall receive the prevailing rate of wages paid in the locality where they are employed.”

It is, I think, as little subject to dispute that the Legislature or the government may determine the amount of wages to be paid by a municipality to those in its employ, as it is clear that in the absence of considerations of public health, morals and safety, it is without power to prescribe terms between individual employer and employee. McAvoy v. City of New *York, supra;*People v. Warren, 77 Hun, 120; People ex rel. Warren v. Beck, 10 Misc. Rep. 77, 78; United States v. Martin, 94 U. S. 400.

The relator argues that as an independent contractor, he falls within the latter class, and that the Legislature was without power to limit his right to contract. His contention is, I think, answered by the case of People ex rel. Warren v. Beck, 10 Misc. Rep. 77. There the construction of a section of the charter of the city of Buffalo, providing that contractors with the city should bind themselves not to accept more than eight hours as a day’s work, was involved, and Hatch, J., said: “Had the city itself performed this work, it would have been within the rule we have announced, and *80subject to the obligation imposed by the law. How can the defendant plead exemption from such statute when it has voluntarily in terms incorporated it in its contract and agreed to be bound by and carry out its terms.”

The act of the relator in entering the competition for the municipal work was voluntary; he was advised by the usual advertisement of the terms of the contract; he knew that the city was under obligation by virtue of valid legislative enactment to pay the prevailing rate of wages; he was under no compulsion to bid for the work; he was willing to act for the city and to assume the conditions imposed upon it of his own free will; and apprised of the facts he entered into an agreement which he cannot now be heard to disavow. *“*Defendant, by bidding and accepting the contract, became the recipient of all the benefits which accrue therefrom, and he should not now be heard in repudiation of lawful obligations assumed thereby.” People ex rel. Warren v. Beck, *supra.*

Tire motion must be denied.

Motion denied.