
    John J. McCunney, Appellant, v. The City of New York, Respondent.
    
      Oity of New York—the compensation of its employees “at the prevailing rate of wages” is determined by the position they are employed to fill as well as by the work done.
    
    Where a person, after having passed a civil service examination for the position of varnisher in the employment of the city of New York, upon being informed ■ by the commissioner of street cleaning that there were no vacancies in the mechanical department, accepted a position as driver, and received the pay fixed for drivers, until he was appointed a mechanic’s helper, from which time until his employment ceased he received the pay of that grade, he is not entitled, under chapter .622 of the Laws of 1894, to recover the difference between the wages which he has actually received and the" prevailing rate of wages for painters and varnishers in the city of New York.
    The fact that, while acting under an employment as driver,' he was set at the work of a painter, does not entitle him to recover, as the statute prescribing the measure of compensation applies in terms to “ mechanics, workingmen and laborers so employed,,” that is, "to those who are engaged to do, as well as those who actually do, work of the character for which they seek to recover the prevailing rate of wages.
    Appeal by the plaintiff, John J. McOunney, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 11th day of March, 1899, upon the decision of the court rendered after a trial before the court without a jury at the New York Trial Term dismissing the plaintiff’s complaint.
    
      Robert L. Redfield, for the appellant.
    
      Charles Blandy, for the respondent.
   Rumsey, J.:

The plaintiff alleges that on the 1st day of May, 1897, he entered into the employ of the street cleaning department of the city of New Y orle as a painter and varnisher, and continued in that employ . until the 15th of July, 1898. He states that the prevailing rate of wages for painters and varnishers in the city of New York during that time was three dollars and a half a day, but that he received from the city of New York as his daily wages a considerably less; sum, and he brings this action to recover the difference between the sum which he actually received and that which he claims he should have received, estimating his wages at the rate of three dollars and a half daily. Upon the trial, which was had before the court without a jury, liis complaint was dismissed, and from the judgment entered upon that dismissal he brings this appeal.

The facts are not in dispute. They were established by the evidence of the plaintiff himself, no other testimony having been given. He testified that, having passed a civil service examination as a. varnisher, he applied for a position in' that capacity to the commissioner of street cleaning, but was told that there were no vacancies in the mechanical department. He was also told, however, that he> could have a position as driver, which he accepted and was put upon the list of drivers in the department, and received the pay fixed for drivers-by the statute until the month .of February, 1898, when he was appointed a mechanic’s helper and received pay of that grade until his employment ceased in the month of July, 1898.

Chapter 368 of the Laws of 1894, which took effect in the month of April, added a new section to the Consolidation Act, by which the street cleaning department was reorganized, and the number of persons who might be employed in each capacity was prescribed and their salaries fixed. The number of drivers in the de.pa.rtmen.fi was fixed at 750, and their salaries were established at §720 a year. This fixed rate of payment was binding upon all the officers and employees of the department, and the amount to be received by each person could'not be reduced (People ex rel. Satterlee v. Board of Police, 75 N. Y. 38), nor could it be increased.

The plaintiff accepted the appointment, went upon the list and received the salary fixed by. the law; and it would seem that these facts constituted a perfect answer to the action which he has brought. But he insists that he is entitled to he paid at the rate of three dollars. and a half a day, because of the provisions of chapter 622 of the Laws of 1894. That act, by its terms, applies to all “ mechanics, workingmen and laborers'now or hereafter employed by the state or any municipal corporation therein, through its agents or officers, or in the employ of persons contracting with the state or such corporation for performance of public works; ” and it prescribes that “all such mechanics, workingmen and laborers so employed shall receive not less than the prevailing rate of wages in the respe» tive trades or callings in which such mechanics, workingmen and laborers are employed in said locality.”

The claim of the plaintiff is that, although he was appointed a driver, and presumptively, therefore, entitled to the rate of pay pre. scribed for drivers by the statute, yet- in fact he was set at the work of a painter, and that, therefore, lie comes within the statute just cited, and should be paid at the rate of three dollars and a half a day. But he does not come within that statute. It applies in terms only to mechanics, workingmen or laborers so employed. To be employed about anything means not only doing the thing, but also to be engaged to do it to be under contract" or orders to do it. (United States v. Morris, 14 Pet. 464, per Taney, C. J., 475.) A man is not employed as a mechanic within that section of the statute unless he is hired as such and does the work of a mechanic. If he enters into a contract with the city, by which he accepts an entirely different position, the rate of pay for which is fixed by law, he is bound by that rate of pay, although he may be detailed for some -other work during the time that his services in the position to which he was appointed are not required. This case is not one where the person is employed to work at any particular trade at a compensation agreed upon between him and the official who hires him at a rate'different from that which the statute prescribes. In such case, although lie may accept his employment as a mechanic or a workingman or a laborer at a less rate of wages than that which prevails in the particular locality, this agreement does not preclude his receiving from the corporation hiring him the rate of wages fixed by the statute. The reason is that the statute fixes the rate, and neither he nor the person who employs him can make any binding contract different from that which the statute prescribes. (McMahon v. The Mayor, 22 App. Div. 113; Kehn v. The State of New York, 93 N. Y. 291.) For the same reason, when he is employed in a particular capacity, as to which the law has fixed the compensation, he must be paid in that capacity, because the law says so, and the person employing him cannot change "the rates which the law gives him or increase the liability of the city towards him by detailing him to perform some other work different from that to which he has been appointed. The principle to be applied is the same in each case. The statute fixes the compensation for the position to which the man is appointed, and, when it is so fixed, the fact that he does work of a different kind is of no importance, because no party has the right to change the obligations which the statute creates..

For these reasons the judgment must be affirmed, with costs.

Van Brunt, P. J., Barrett, Patterson and O’Brien, JJ., concurred.

Judgment affirmed, with costs.  