New-York tribune., 1900-12-15
CITY MUST PAY CLAIMS.
DECISION ON PREVAILING RATE LAW
ITS POSSIBLE EFFECT.

An important decision as to the application OF
the prevailing rate OF wages law TO cohtra0'
work for the city was handed down by the Ap-
peIiate Division of the Supreme Court yes'er-
dav II directs Controller CoIer to deliver TO
William j. Rodgers warrant on the City Chani-
berlain for the payment of s.. .S63 earned by MT.
Rodgers under a contract for regulating anu
grading hundred and thirty-fifth-st. The
contract is for work for which the city will nave
to nav about $4,000. After Mr.. Rodgers nao
begun the work and had received one or more
payments. some of the walking delegates OF a
labor union filed notice with the ContrOier
that the contractor was not paying the prevail
ing rate of wages. Thereupon the Confoier
withheld the payment Of $2s63. then due to Mr.
Rodgers for his alleged noncompliance Win
that law.
The contractor thereupon made motion for
peremptory writ of mandamus. This motion
came up before Justice Leventritt who, after
hearing it, gave his opinion, denying the right to
the writ From this order the contractor APP
pealed to the Appellate Division.
This is one of the test cases brought by Kel-
logg & Rose on a retainer of various contractors
to determine the constitutionality of the So
called labor law.
The prevailing opinion Of the Appellate Dr.
vision, that the contractor is entitled to pay
for work done, is written by Justice Ingraham.
Justices Patterson and Hatch cOncurring. JUS
tice Ingrahem points out that the money was
due for work done during March: that it was
rot specifically shown that the contractor had
failed to comply with the labor law during that
month: that the contractor has not and does
not pay the prevailing rate of wages was the
conclusion of the Controller on information
and belief after having the charges investi-
gated but that this was not made specific as
to work done in March.
The Justice says also that a contractor might
work for the city for nothing If he in
clined There was. however. in the contract. an
agreement that the prevailing rate Of wages
should be paid, but there no provision
which makes the contractors compliance with
that obligation condition OF his receiving the
compensation agreed upon Justice Ingraham
also says that the provisions in question were
inserted under a requirement of law, and not
for the benefit of the contractor. and it is for
the city to enforce the forfeiture, if the contract
is to be declared void. No notice Of any such
intention had been served by the city. and in
fact the officials had continued to supervise tie
work. This construction seemed to be sustained
by Section of the law. which provides that
any citizen may maintain action for the rur-
pose of securing the cancellation or voidance
of a public contract. Justice Ingraham adds:
The effect Of a construction of this act is
asked for by counsel for the respondent would lead
to the result that, although contractor had I'm
ished his work, and such work had been accepted
by the city il 1t should subsequently appear that
the contractor had paid to particular empOye
less than subsequently ascertained TO have
been the prevailing rate of wages, then his whole
right receive from the city the amount that it
was agreed should be paid Is swept away by force
of this provision of the statute | cannot believe
that suca the intention of the Legislature. and
do believe that, If it intended, it was in vio
lation of the Constitution, and void
Justice OBren in a dissenting opinion. con-
CURED in by Presiding Justice Van Brunt, says
that it is not necessary at present to determine
between the construction placed on the law by
Justice Leventritt at Special Term. by JUS
tice Ingraham on the appeal. He holds that
mandamus was not proper remedy, in any
event.
The decision given yesterday was considered
far reaching. "It will put end" said a law
yer "as long as it stands, to the action of the
Controller under the Labor law. whereby, upon
notice from the walking delegate Of a labor
union, he has withheld payment from the con-
tractors during the last six or eight months.
Hundreds OF thousands of dollars earned under
contracts have been withheld from the con-
tractors. and many proceedings are now pending
to enforce their payment"
The Controller not in the city last even
ing having gone to Boston.