
    Joseph Farrell, Appellant, v. The Board of Education of the City of New York, Respondent.
    Second Department,
    May 9, 1906.
    Municipal corporation—Labor Law — salary of janitor of public school of Brooklyn not controlled thereby—local authorities have exclusive power to fix such salary.
    The position of janitor in a public school in the borough of Brooklyn is not within section 3 of chapter 415 of the Laws of 1897, as amended, which provides that laborers on public works shall be paid the prevailing rate of wages paid to laborers not engaged upon public works. Such janitor cannot recover wages in excess of .those assigned him by the local authorities on the theory . that other janitors are paid higher wages. «
    As such janitor.is a subordinate specifically recognized by the city charter, and as the local authorities have exclusive statutory power to regulate his salary, he cannot avail himself of the provisions of the Labor Law."
    Appeal by the plaintiff, Joseph Farrell, from a judgment of the Supreme Court, in favor of the defendant, entered in the office of the clerk of the county of Kings on' the 5th day of April, 1905, upon the verdict of a jury rendered by direction of the court.
    
      L. Laflin Kellogg [Alfred C. Pette and Max Lehman with him on the brief], for the appellant.
    
      William, Hughes [James D. Bell and John J. Delany with him on the brief], for the respondent.
   Jenks, J.:

This action is to. recover for janitor’s services in a public school ■ in the borough of Brooklyn. The plaintiff complains that he has earned, at the prevailing rate of wages paid to janitors in the borough of Manhattan for like services, $4,000 in excess of the salary received by him. He was appointed a janitor by tlio school board in Brooklyn in 1892, and his compensation was fixed pursuant to authority at $1,000 a year. After consolidation, the Brooklyn borough board increased that sum to $1,360 a year, and on May 1, 1902, it was pursuant to sections 10 and 56a of the revised Greater Hew' York charter (Laws of 1901, chap.466, as respectively amd. by Laws of 1902, chaps. 436 and 435), further increased to $1,699.20 per. annum. The .plaintiff relies upon that part of section 3 of chapter .415 of the Laws of 1897, as amended by chapter 567 of • the Laws of 1809 and by chapter 298 of the Laws of 1900, which provides : “ The wages to be paid for a legal day’s work as herein-before defined to all classes Of such laborers, workmen or mechanics ' uipon all such public works, or upon any material to be used upon or in connection therewith, shall not be less than the prevailing rate for a day’s work in the same trade or occupation in the locality within ■ the State where such public work on, about or in connection with such labor is performed in its final or completed form is to be situated, erected or used.”. The plaintiff is a “ person employed to take charge of rooms or buildings, to see that they are kept clean and in order, to lock arid unlock them, and, generally, to care for them.” (Fagan v. Mayor, 84 N. Y. 352.) Óf course, as in discharge of such duties, he labors and works and employs mechanical skill, he may be said, as the.' doer, to be, in the broad sense of the terms,-a laborer, a.workman or a mechanic, for the first two words áre generic, and sometimes, all other signs failings have been regarded even as marking those who toil from those who are idle. But the language of -the Labor Law (supra) indicates that it refers'to those who are paid daily wages . for labor upon public works, and that its purpose is to require that such wages shall equal the prevailing rate paid to other laborers, Workmen or mechanics not engaged upon public work.

On the other hand, this plaintiff is a subordinate specifically recognized by the charter, appointed by the.-board of education and ‘ removable by it. (Revised Greater N. Y. Charter, §§ 1067, 10.74.) By section 1069 of the original charter (Laws of 1897, chap. 378) the board of education had the exclusive power to regulate his salary. Section 1101 of the revised charter provided for his continuance with the compensation as was then provided ór as mighty thereafter be provided by the lawful authority. The power over salaries committed to the local authorities by sections 10 and 56 of the revised charter (as amd. supra) extends to the compensation of the plaintiff. This is specifically shown by the exclusion in section 56, “other than day laborers and teachers, examiners omd members of the supervising staff of the department of education,” for the Exclusion of. some of the employees of the department indicates the inclusion of the others. There' is no force in the point that as section 56 is limited to “ compensation * * * paid out of the city treasury ” it does not apply to the salary of this plaintiff. There is no such precise thing as “ the city treasury,” but this term is used to describe the money that is raised, received and expended by the municipal corporation. That the public school moneys are thus properly described is evident from the provisions of sections 1055, 1059, 1060 and 1064 of the revised charter (as amd. by Laws of 1903, chap. 43).

The revised charter was passed subsequent to the Labor Law and its amendments.' My conclusion. is, as the Legislature intended to prescribe and to provide for the salaries of janitors and the regulation thereof by the revised charter of the city of New York, that in any event the part of the Labor Law cited does not apply. In State ex rel. Ives v. Martindale (47 Kan. 147) a somewhat similar statute was under review and the court held that a like expression did not embrace any officer or employee for whom an annual salary had been specifically named and appropriated by the Legislature. I think the principle is the same, notwithstanding the action in this case is. by the local authorities, inasmuch as it is pursuant to the express sanction of the Legislature.

The judgment is affirmed, with costs.

Present — Hirschberg, P. J., Woodward, Jenks and Rich, JJ.

Judgment unanimously affirmed, with costs.  