
    Patrick Walsh, Respondent, v. The City of Albany, Appellant.
    
      Compensation of a bridgetender on the Ph'ie canal, employed by the Superintendent of Public Works at the expense of the city, of Albany—a laborer not requiring a civil service examination.
    
    Under the provisions of chapter 400 of the Laws of 1888, providing that a bridge across the Erie canal in the city of Albany shall “ be operated under the direction of the Superintendent of Public Works, but at the expense of the city of Albany,” the compensation of a bridgetender may, by virtue of section 2 of chapter 885 of the Laws of 1870, as amended by chapter 622 of the Laws of 1894, and also of section 3 of chapter 415 of the Laws of 1897, providing that those engaged on public works shall receive not less than the prevailing rate of' wages in the same trade or calling in the locality where the work is performed, be fixed at two dollars and twenty-five cents per day, as-the reasonable value of such services, especially where such bridgetender had been previously paid at that rate, and no specific arrangement on the subject had been made with, him. in relation to the services to recover the value of which the action was brought.
    Although the position of such a bridgetender has not been classified by the State authorities in pursuance' of the Civil Service Act, the court will not-assume that his employment was illegal, where he testifies that he holds the position of a “laborer” and as such is exempt from, examination by the terms of the statute.
    Appeal by the defendant,. The City of'Albany, from a judgment of the County Court of Albany county, in favor of the plain tiff, entered in the office of the clerk of the county of Albany on the -11th day of March, 1898, affirming a judgment of the City Court of Albany, with notice of an intention to bring up for review upon such appeal an order- of the County Court of Albany county, entered in said clerk’s office on .the 11th day of March, 1898, affirming the judgment of said City Court of Albany.
    
      
      John A. Delehanty, for the appellant.
    
      Scherer c& Downs, for the respondent..
   Merwin, J.:

The plaintiff has recovered for services as bridgetender at a lift or hoist bridge across the Erie canal at North Ferry street, in the city of Albany, from April 22, 1897, to and including the 31st of July,' 1897, at the rate of two dollars and twenty-five cents per day. This bridge was constructed pursuant to the provisions of chapter 400 of the Laws of 1888. The act provides that the bridge shall, on completion, be operated under the direction of the Superintendent of Public Works, but at the expense of the city of Albany.”

The plaintiff. presented his claim • to the common council of the city, which audited it at the rate of fifty dollars per month. This the plaintiff declined to receive, claiming he was entitled to receive pay at the rate of two dollars and twenty-five cents per'day. Hence the suit.

It is claimed by the defendant that, there was never any legal employment of the plaintiff, and that in any event he should not recover at a rate exceeding fifty dollars a month.

The defendant did not operate the bridge, and the plaintiff, therefore, was not in its employ. (Gilligan v. Town of Waterford, 91 Hun, 21, 27; Larkin v. Village of Brockport, 87 id. 573, 575.)

The action, therefore, of the mayor of the defendant in providing for a civil service examination as to this position, and in fixing the amount of compensation; did not affect the rights of the plaintiff.

The evidence authorizes the finding that the plaintiff was employed by or under the direction of the Superintendent of Public Works. The section superintendent, whose duties included the designation or appointment of bridgetenders, set the plaintiff at work. On the 30th of April, 1897, John L. Parker, Assistant Superintendent of Public Works, notified the mayor of defendant, in writing, that the Superintendent of Public Works, on April 22, 1897, appointed the plaintiff as bridgetender at the bridge in question. The position of assistant superintendent is recognized by the Constitution. (Art. 5, § 3.) The plaintiff in fact performed the work for which he claims to be paid.

The plaintiff has not passed a civil service examination, and the defendant, therefore, says the plaintiff cannot recover. The plaintiff replies that lie holds the position of- laborer ” and is exempt from examination by the terms of the statute. (Chap. 354, Laws of 1883, § 7, as amended by chap. 681, Laws of 1894.) The plaintiff testifies that his occupation is that of a laborer.” It does not appear that his position has ever been classified by the State authorities in pursuance of the Civil Service Act (see People ex rel. McClelland v. Roberts, 148 N. Y. 360), and, if not, we ought not, I think, upon the facts here presented, to assume that his employment was illegal. .

The compensation of the plaintiff was not fixed by the terms of his employment. By the statute it was provided that those engaged on public works should receive not less than the prevailing.rate of wages in the same trade or calling in the locality where the work was performed. (§ 2, chap. 385, Laws of 1870, as amended by chap. 622,. Laws of 1894.) . A similar provision is in the Labor Law. (§ 3, chap. 415, Laws of 1897, taking effect June 1, 1897.).

It appears in. the case that the plaintiff had been employed as bridgetender at the bridge in question during the seasons of 1895 and 1896, ending with November 30, 1896, and had been paid by -.the defendant at the rate of two dollars and twenty-five cents per day. When he commenced work in April, 1897, it may, with some force, be said that he had, in the absence of any specific arrangement on the subject, a right to assume that the wages would be the same.

On the 22d of July, 1897, and after the plaintiff had presented to the defendant his account for services at the rate of two dollars and twenty-five cents per day up to July first, the mayor of defendant assumed to fix the pay for bridgetender on the bridge in question and two other bridges at the rate of fifty dollars a month. He had the right to do this as to one of the bridges (Chap. 298, Laws of 1883, tit. 16, § 13); .not, however, as to the one in question.- His action did not bind the plaintiff, and, at least, was not conclusive as to the prevailing rate of usages for this kind of service in' that locality. Nor was the proof as to the prices paid in other localities controlling.

In the complaint it was alleged that the reasonable value of the services of plaintiff was two dollars and twenty-five cents per day. This was denied in the answer. Upon the issue so made, the proof as to the price paid during the prior years was relevant. The plaintiff had the right to recover the reasonable value. The court was, I think, authorized to find that the reasonable value in 1897 was the same it was in 1896.

The judgment should, I think, be affirmed..

All concurred, except Herrick, J., not acting

Judgment affirmed, with costs.  