Wright v. Herb Wright Stucco, Inc.

Cardamone, J. P., and Hancock, Jr., J. (dissenting).

It has long been the policy of this State that workers on public projects be paid according to the prevailing rate of wage in the locality (L 1894, ch 622, § 1). Subsequent to 1894 contractors doing business in the public sector were required to include in the contract with the public owner a provision that they would pay their employees the prevailing rate of wage. Until 1927 there was no special method by which employees could enforce this obligation. In that year the Legislature established a statutory remedy by which an interested party might initiate an administrative enforcement proceeding (L 1927, ch 563). This legislation was enacted primarily to assist private employees in enforcing their rights against their employers inasmuch as their existing common-law contractual rights entailed difficult issues of proof. Since public employees had no contractual common-law rights because they were not third-party beneficiaries to a contract, this legislation established the sole and exclusive remedy for public employees not in the graded service of the competitive class of civil service (Matter of Corrigan v Joseph, 304 NY 172; Matter of Gaston v Taylor, 274 NY 359; see Matter of Yerry v Goodsell, 4 AD2d 395, affd without opn 4 NY2d 999). Although at one time there may have been speculation that this statutory remedy superseded and extinguished private employees’ common-law contractual causes of action (see Olsen v Brooklyn Ash Removal, 268 NY 693), such view, as the Court of Appeals has stated, "cannot be read into the statute by any reasonable construction” (Fata v Healy Co., 289 NY 401, 407). Section 220 of the Labor Law "has as its entire aim the protection of workingmen against being induced, or obliged, to accept wages below the prevailing rate” and "must be construed with the liberality needed to carry out its beneficent purposes” (Bucci v Village of Port Chester, 22 NY2d 195, 201). With this in mind, it is incongruous to hold, as the majority does, that this ameliorative statute actually had the effect of removing a remedy which workers had heretofore possessed. Instead, the statute simplified and implemented the worker’s remedy by removing some of the burdens that a normal law suit would entail. Of course, in this case the plaintiffs will have to establish at trial the prevailing rate of wage for the locality. This is not an impossible task, *961however, as the term is appropriately defined in subdivision 5 of section 220. In addition, it is a term with a lengthy judicial history and well susceptible of ascertainment (Campbell v City of New York, 244 NY 317). (Appeal from order of Monroe Supreme Court—dismiss complaint.) Present—Cardamone, J. P., Simons, Hancock, Jr., Callahan and Moule, JJ.