
    Patrick J. McNulty, Respondent, v. The City of New York, Appellant.
    
      New York street cleaning department—the drivers are entitled to pay for work done in excess of eight hours a day.
    
    The Labor Law of 1870(Chap. 885), providing that “eighthours shall constitute a legal day’s work for all classes of mechanics, workingmen and laborers (employed by the State or any municipal corporation) except those engaged in farm and domestic labor,” applies to the street cleaning department of the city - of New York.
    A driver in that department is either a workingman or a laborer within the meaning of that statute.
    Where the commissioners of the street cleaning department in the city of New York, who by chapter 415 of the Laws of 1892 are authorized to “require any driver to work over time, in which event such driver shall be entitled to receive extra and additional compensation at the rate of twenty-five cents per hour for each hour of such over time,” deem it necessary for the proper administration of the department to require the drivers to work more than the statutory period of eight hours a day, and inform them that they will receive pay for such over time, and the drivers work the over time expecting to receive pay therefor, each of them is entitled to receive from the. city compensation for such over time, although the' commissioners knew at the time they ordered the men to work over time that there was no available appropriation from which to pay therefor, and although the contract of employment did not expressly provide for such payment.
    Yan Brunt, P. J., and Rumsey, J., dissented. .
    The effect of section 47 of the Consolidation Act (Laws of 1882, chap. 410), limit, ing the expenditures for any purpose to the amount appropriated for such purpose, was not. considered because it was not pleaded.
    Appeal by the defendant, The City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 24th day of November, 1900, upon the report of a referee.
    The plaintiff, as assignee of some 797 drivers in the street cleaning department, sues to recover the sum of $1,336,000 for extra work performed by them in working more than eight hours per day between January 1, 1892, and April 26, 1894.
    On the hearing before the' referee about one-half of the drivers were called as witnesses, and in substance testified that between the dates named they had performed over and above the eight hours, which they regarded as a day’s work, many additional hours of work as drivers, pursuant to instructions received from their superiors ; that the orders which each received was that he should remain out until the route assigned him had been cleaned up, that is, the refuse removed, and that each expected to be paid "for said services as for overtime and was told he would receive it. To avoid the necessity of calling all the drivers, a stipulation was made by counsel for the respective parties, wherein, “in consideration of the plaintiff’s agreeing to accept * * * four hours a day for the remaining assignors, the defendant also stipulates to admit that the evidence already in would warrant the referee in finding those men worked six hours for each day, the records of the Street Cleaning Department show that such men did work over and above eight hours a day, and that neither of them have ever been paid for such work or overtime.”
    The commissioners who were the heads of the department when the services are claimed to have been rendered were called, and in substance testified that during their tenure of office they deemed it necessary and essential for the proper administration of the department to work the drivers overtime each day, that is, over the statutory time of eight hours. One of the commissioners stated : “ The performance of that work was necessary in order to keep the streets in proper condition, and that continued during all the period of my ■commissionership ; the route traveled over by each of the drivers could' not have been cleaned within the statutory period of eight hours a day during that period with the force I then had at my command; * * * the drivers were entitled to be paid * * * for such extra work or overtime,” and the reason they were not paid was “ because of lack of appropriation.” Upon such testimony, the referee found that the amount of overtime .stated was necessary to be done in order to perform the work required by the department, and was deemed by the commissioners to be necessary and was ordered by them to be done, and the doing of it created a liability against the city, as proved in this case, of $203,399. Judgment was directed for this amount, and from such . judgment this appeal is taken.
    
      Theodore Connoly, for the appellant.
    
      William J. Walsh, for the respondent.
   O’Brien, J.:

The Labor Law of 1870 (Laws of 1870, chap. 385) provides as follows: Section 1. ©n and after the passage of this act, eight hours shall constitute a legal day’s work for all classes of mechanics, workingmen and laborers, excepting those engaged in farm and domestic labor; but overwork for an extra compensation by agreement between employer and employee, is hereby permitted. § 2. This act shall apply to all mechanics, workingmen and laborers now or hereafter employed by the State or any municipal corporation.” In chapter 415 of the Laws of 1892 (adding § 704a to the Consolidation Act) it is provided: “ Whenever he shall deem it necessary the said commissioner may require any driver to work over time, in ' which event such driver shall be entitled to receive extra and additional compensation at the rate of twenty-five cents per hour for each hour of such over time.”

The appellant’s contention, that the Labor Law; has no application-to the street cleaning department, is untenable, for the reason that the act itself is a general one, and by its express terms is- made applicable to those who at that time or thereafter should be employed by the State or by a municipal corporation. And equally untenable is the further contention, that drivers in the street cleaning department are not mechanics, workingmen or laborers, for no extended argument is required to prove that a driver is either a workingman or a laborer within the wording of the statute.

Coming, therefore, to the facts presented herein, we think upon the testimony adduced and the stipulation of the defendant that there can be no serious question, but that the conclusions reached by the learned referee are sustained; that the assignors of the plaintiff worked the numbers of hours overtime; that this was done by the direction of the head of the department, and that the drivers ■ expected to be paid for such overtime. It is insisted, however, that though these facts be conceded, the city is not liable for labor beyond the statutory time because payment therefor was not expressly provided in the contract of employment. But this contention has been disposed of in McCarthy v. Mayor (96 N. Y. 1) where the Labor Law was discussed and where, after showing that the city would be liable under an express contract to pay extra compensation for overtime, the court on the subject of the liability arising from an implied contract thus states the rule: “ Such an implication arises only when the services are rendered under circumstances authorizing an expectation of compensation therefor, or the inference that they would not otherwise have been rendered. * * * The distinction between an express and an implied contract is that the first is proved by an actual agreement, and the other by circumstances and the course of dealing between the parties.”

The question presented for the determination of the referee, therefore, upon the theory of an implied contract, was whether the services were rendered under circumstances authorizing an expectation of compensation therefor, or the inference that they would not otherwise have been rendered.”

Upon this branch, also, it is with regret that we reach the conclusion that the contention of the city cannot be sustained. We say with regret, because upon the facts appearing a rather serious situation is presented bearing upon the right of the head of a department to create liability apparently without limit. The testimony of the commissioners shows that this obligation was assumed with full knowledge that it was in excess of the amount appropriated for the department, and though the commissioners justify their action by the fact that the work was essential and necessary for the public service, they frankly admit that in addition to what was required for the expenses of the department, there was no money available from the appropriation allowed to pay for the extra work.

Section 47 of the Consolidation Act (Laws of 1882, chap. 410) provides : “ It shall be the duty of the heads of all departments of said city, and of all boards and officers charged with the duty of expending or incurring obligations payable out of the moneys raised by tax in said city, so to regulate such expenditures for any purpose or object that the same.shall not in any one year exceed the amount appropriated by the board of estimate and apportionment for such pupose or ob ject; and no charge, claim or liability shall exist or arise against said city for any sum in excess of the amount appropriated for the several purposes.” That this section has been evaded, and that it furnishes no safety to the city, seems certain if the action of the commissioners in creating the liability which they admit could not be paid out of their appropriation, is to be sustained. The effect and bearing of this section, however, is not before us, because not • pleaded, and while it is natural that we hesitate in- affirming a judgment for such a large amount, and wdiich, as a precedent, might furnish encouragement for any head of a department to evade the provision of the law which was intended to prevent expenditures beyond the amount appropriated for the department, still, upon the pleadings and the proof before us,- we see no escape from the conclusion reached by the referee and must, therefore, affirm the judgment.

However, we think the question presented is of such serious importance as to justify its review by the Court of Appeals; and as it is doubtful, if there is no dissent to the affirmance of the judgment, whether the city could take an appeal without the permission of this court, leave is granted to the city to appeal to the Court of Appeals.

Judgment affirmed, with costs.

Patterson and McLaughlin, JJ., concurred ; Van Brunt, P. J., and Bumsey, J., dissented.

Judgment affirmed, with costs, with leave to the appellant to appeal to the Court of Appeals.  