Village of Medina v. Dingledine

McLennan, P. J. (dissenting):

There is substantially no dispute as to the facts in this case. On May 1,1907, the defendants Dingledine and Patten entered *313into a contract with the plaintiff, an incorporated village, through its officers, for the construction of a sewer for the agreed price of $37,347.50, and commenced work thereon at about the same time. On June 27, 1907, the defendant Title Guaranty and Surety Company, as surety, and Dingledine and Patten, as principals, delivered to plaintiff a bond dated June 17, 1907, in the penal sum of $18,673.75, conditioned for the full and faithful performance of all the terms and conditions of the said contract, guaranteeing to save the plaintiff harmless from any and all damages in any way resulting from or growing out of the performance and fulfillment of said contract by the contractors. The contractors continued work until December 27, 1907, when for stifficient cause the village, after giving proper notice, itself took possession of and completed the work called for by the contract. Prior to that time it had paid the contractors $29,268.83 on the work at various times as the work progressed, which was received by the contractors without any suggestion that the contract entered into by them was invalid. After taking over the work the village, expended the further sum of $20,846.86, and, after deducting for extras, it was shown that the village had expended the sum of $7,352.94 over and above the contract price, for which sum plaintiff demands judgment, together with the penalty of $50 per day for delay in completing the work as prescribed by the contract.

The referee has found: “That the officers of the plaintiff during all of said time when the defendants Dingledine and Patten were so engaged in work upon the said contract were aware that the said defendants employed their men ten hours each working day.”

This he finds to be a violation of the provisions of section 3 of the Labor Law, on account of which violation the contractors were not entitled to receive, nor was any officer of the plaintiff entitled to pay, any sum for the work done upon the contract, and that any payments so made were unauthorized, and cannot for the purpose of this action be included as a part of the expenses to the plaintiff of the said work, and inasmuch as the further sums expended by the plaintiff are less than the contract price, the referee finds that the defendants are entitled to *314judgment against the plaintiff dismissing the complaint on the merits, with costs. A separate judgment in favor of the defendant surety company was entered and from such judgment this appeal is taken.

Section 3 of the Labor- Law contains, among other things, the following provisions: “Eight hours shall constitute a legal day’s work for all classes of employees in this State except those engaged in farm and domestic service unless otherwise provided by law. This section does not prevent an agreement for overwork 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 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 shah 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 section; - and no such person or corporation shall be entitled to receive any sum nor shall any officer, agent or employee 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 maimer of performance violates the" provisions of this section.” (Gen. Laws, chap. "32 [Laws of 1897, chap. 415], § 3, as amd. by Laws of 1906, chap. 506; now Consol. Laws, chap. 31 [Laws of 1909, chap. 36], § 3, as amd. by Laws of 1909, chap. 292.)

I think the finding of fact made by the referee as to the knowledge of the plaintiff and its officers concerning the violation of this section of the Labor Law by the contractors is amply supported by the evidence, but I cannot agree with the conclusion reached by the learned referee that under the cir*315cumstances shown the contractors and their surety were relieved from all further liability in reference to the contract. While the section quoted requires certain stipulations as to hours of labor in any contract of the kind involved in this action, I do not think that the failure to insert such stipulations renders such a contract void on its face, but rather that the contract is to be considered as having been made in contemplation of such statute and that it must be assumed that the statute is to be read into and become a part of such contract; but even so, the Labor Law is a civil act, entirely independent of the penal act (Penal Code, §>. 384h; Penal Law, § 1211) referring to the same subject, and 'the s'ection quoted is for the benefit of the village. The acts prohibited by that section are not illegal in and of. themselves, but are rendered illegal solely <by prohibition of the law, and it seems to me that while.vthe village had the right to refuse to make any payments for "work done in violation of the section, it still had the rigfrj; tb'tvaive this provision of law for its benefit and accept and pay (for the work in the manner in which it did. It would seem .to me clear that the con-, tractors could not set up their own acts in violation of this statute as a sufficient reason for refusing to complete the contract, and I think such defense is no more available tó their surety than to themselves. Ho question is made but that the value of the work done by the contractors amounted to the sum of $29,268.83, which the village paid, and to complete the work according to the contract it became necessary.-for the village to expend several thousand dollars more than the contract price. In this respect I think the contracting company. failed to perform its contract, and that the surety company was liable for such non-performance, and that this provision of the law, even if it be deemed to be a part of the contract, is not available to the surety company, in view of the fact that the principal of the surety had received the money and had accepted the benefits under the provisions of the contract.

I, therefore, conclude, that the judgment appealed from should be reversed and a new trial granted, with costs to the appellant to abide the event.

Judgment and order affirmed, with costs.