
    William McGraw, Appellant, v. The City of Gloversville, Respondent.
    
      Laborer employed by a municipal corporation—recovery, after, his term has expired, of extra pay for services in excess of eight hours a day.
    
    A janitor employed by a municipal corporation in a city building, who has been paid every two weeks, for his services at the rate of one dollar and fifty cents a day, which he has received without making claim for more, cannot, after bis term of service has expired, recover; under chapter 385 of the. Laws of 1870, as amended, by chapter 622 of the Laws'of 1894, an additional sum from the municipal corporation as compensation for extra hours of service in excess of eight hours per day. .
    Appeal by the plaintiff^ William McGraw,- from a . judgment of the Supreme Court in favor .of the defendant, entered in the office .of the clerk of the county of Fulton on the 8th day of December, 1-897, upon the report of a:referee dismissing the plaintiff’s complaint upon the merits.
    
      Clark L. Jordan, for the appellant.
    
      Frank Talbot and Jerome Fgelsion, for the respondent;
   Landon, J.:

The plaintiff, a citizen of the United States, was employed by the defendant, a municipal corporation, as janitor and caretaker of its city building, and he rendered services as siich in and about such building, pursuant to his employment, from May 10, 1894, to October 31, 1896, and was paid therefor every two weeks at the rate of one dollar and fifty cents per day, which he received, without making claim for more until after his whole period of service had expired. The referee has found that the prevailing rate of wages in said city during this time for laborers of the same class as the plaintiff was one dollar and fifty cents per day of ten hours. We do not understand this to mean, of the class of janitors, but of men of the plaintiff’s laboring capacity. His services consisted in'opening and closing the building, lighting the offices and extinguishing the lights, taking care of the fires, sweeping the floors and the sidewalks about the building, and doing other work incidental to the proper care of the building. He actually worked in such service twelve and one-half hours each day, and this period of daily service was necessary for the proper discharge of his duties. He brought this action to recover, compensation for the extra hours of service in excess of eight hours per day, basing his right to recover upon chapter 385, Laws of 1870, as amended by chapter 622, Laws of 1894.

Section 1. On 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 therein, through its agents or officers, or in the-employ of persons contracting with the State or such corporation for performance of public works.”

Sections 3-and 4 provide for the punishment of violations and evasions of the provisions of this act.

In 1894 the Legislature amended section 2 of the foregoing act by adding thereto the following provision: “ And all such mechanics, workingmen and laborers so employed shall receive not less than the prevailing rate of wages in the respective trades or callings in which such mechanics, workingmen and laborers are employed in said locality; ” and a provision requiring the employment of citizens of the United States.

The judgment should be affirmed upon the authority of McCarthy v. Mayor (96 N. Y. 1), which holds that there is nothing’ in the act of 1870 “to interfere with the question of the rate of compensation to be paid for labor, but left it in terms to the agreement of the parties,” and that neither extra labor can be required, nor extra compensation demanded except in the case of an agreement therefor previously made by the parties,” -unless the addition to section 2, made in 1891, and above quoted, changes the law. The plaintiff did not receive “ less . than the prevailing rate of wages ” in said city, but he wrought more than eight hours per day. This he was willing to do. No constraint was placed upon, him; indeed, the evidence justifies the inference that he was willing to continue his service at the.same pay and hours of labor. Will the law interfere, .after a willing service has been rendered and paid for, pursuant to the understanding of both parties and to their entire satisfaction, and compel further payment ? We think not, in case the laborer is of mature age, and not under the constraint of his employer. The statute may be construed as expressing the contract between the parties when it is not expressed by themselves or implied by-' their acts, but not as impairing the obligation of such lawful contracts as they are competent to make, and which they have fully executed and satisfied according to their mutual understanding.

We have not' overlooked McMahon v. Mayor (22 App. Div. 115). We do not think the plaintiff is one of the laborers contemplated by the statute.

The judgment should be affirmed, with costs.

All concurred.

Judgment affirmed, with costs.  