
    (4 Misc. Rep. 50.)
    FAILING v. CITY OF SYRACUSE.
    (Onondaga County Court.
    June, 1893.)
    1. Bridges over Canals—Wages of Tenders—Regulation by State.
    Laws 1881, c. 488, § 1, provides that any town, village, or city may, at its own expense, build a bridge over a canal within its own limits, subject to the approval and under the direction of the state superintendent of public works. Section 2 provides that the superintendent of public works shall have sole power of appointing and removing the tenders of hoist, lift, and swing bridges, but their wages shall be paid by the town, village, or city to the superintendent, to be paid by him to them. Bold, that bridge tenders are employes of the state, and their compensation may be determined by the legislature.
    2. Same—Liability of City.
    The building of a bridge by a city, under such law, is an acceptance of its terms, whence arises a contract to pay the wages of the bridge tenders, and they may sue the city on its default in such payment.
    Action by Failing against the city of Syracuse.
    Judgment for plaintiff.
    M. J. Haven, for plaintiff.
    Charles E. Ide, corp. counsel, for defendant.
   HORTHRTJP, J.

The plaintiff, representing himself and 12 assignors, sues the city of Syracuse to recover a balance of 20 cents a day, for a given period, claimed to be due for services performed as. bridge tenders on the hoist, lift, and swing bridges of the city during the year 1889. The legal questions raised are: (1) Are these bridge tenders employes of the state? If so, can they sue the city? (2) Are they employes of the city? If so, is the statute of 1889, (chapter 380,) fixing the wages of state employes, applicable, or, if applicable, is it constitutional?

Section 1, c. 488, Laws 1881, provides that any town, village, or city on the line of the navigable canals may build and maintain within its own limits a bridge such as may be deemed best, subject, however—First, to the approval and consent, and under the direction, of the superintendent of public works; and subject, second, to the requirement that the same must be built at the proper cost and expense of such town, village, or city. By the terms of this section the town, village, or city may contract for and pay for the building of such bridges, and the laborers in such work would not be “state employes.” Section 2 of the same act, being in relation to bridge tenders of hoist, lift, or swing bridges, declares that the superintendent of public works shall alone have the power of appointment and removal of such and so many of such bridge tenders, as he may think proper, but the expenses or wages of such bridge-tenders shall be paid to such superintendent of public works by any such town, village, or city when and as often as he may require, to be by him paid to such bridge tenders. By this section the superintendent of public works appoints and removes the employes. The power to do this carries with it, of necessity, or at least impliedly, the power to fix the wages. This appointing the employes •and fixing their wages would, in the absence of any express provision to the contrary, make them the employes of the state. There is no -contrary provision in the statute. Further, these wages are in fact to be paid by the superintendent or by the state, and the state is to be, in effect, reimbursed by the town, village, or city. In other words, the state appoints, and so hires, the bridge tenders, and the -city furnishes the state the money to pay them with. The state is bound to take care of the canals,—their own property,—the bridges thereon included, and can only do so by having the power to hire men to do the work. It says to the city: “You may build hoist, swing, or lift bridges over our canals on condition that we still have 'Control and supervision and power to take proper care of them; but you must pay us what cost we are put to by this additional burden ■on us.” I think the most reasonable view of the case is that the bridge tenders are state employes, and not employes of the city. It was clearly competent for the legislature to fix the amount which should be paid to its own employes.

The further question is raised whether these state employes can sue the city for these wages, in case the city fails to advance the money as required by law. The law providing for the building of the bridges tendered by these men contained the provision that the ■city should pay the wages of the bridge tenders to the superintendent of public works, who in turn was directed to pay the money over to the men. The building of the bridges, under this law, was an acceptance by the city of these terms, and thereby a contract arose to pay the wages as provided by these terms. There was, in law, a ■clear, definite promise on the part of the city to pay the superintendent of public works the wages of bridge tenders, for their benefit. This constituted the city the debtor of the bridge tenders, and they are entitled to sue the city on its promise. It was clearly the intent of the city to pay these men through the medium of the superintendent. Fot only that, but it appears by the submitted facts that ike city actually paid the men directly so far as they were paid, without the intervention or agency of the superintendent.

If these views are correct, these bridge tenders were employes of the state; the state had the constitutional right to fix their wages by statute; the statute fixing those wages at two dollars a day is applicable to this case; the city has contracted to pay the wages for the benefit of these men, and the plaintiff, as their assignee, may legally maintain this action for such wages against the city.  