
    George J. Bohnen, Plaintiff, v. Herman A. Metz, as Comptroller of the City of New York, and Others, Defendants.
    First Department,
    June 5, 1908.
    Labor Law—municipal contract — eight-hour day — forfeiture — “ subcontractor.”
    A municipal contractor does not forfeit his contract or payments due thereunder by contracting for the manufacture of doors, windows and other manufactured woodwork for the building with one who in doing the work employs his men more than eight hours a clay and pays them less than the prevailing wages, since such manufacturer is not a “sub-contractor or other person doing or contracting to do the whole or a part of the work ” within the meaning of the Labor Law.
    The transaction was a mere purchase of material.
    
      Submission of a controversy upon an agreed statement of facts, pursuant to section 1279 of the Code of Civil Procedure.
    
      Charles Maitland Beattie, for the plaintiff.
    
      Francis K. Pendleton, Corporation Counsel [Theodore Connoly, Assistant], for the defendants Metz, as comptroller, and The City of New York.
    
      Edward M. Grout, for the defendant Wille.
   Houghton, J.:

The parties submit their controversy under section 1279 of the Code of Civil Procedure, and by their stipulated facts show that the plaintiff is a citizen of this State and the defendant city a municipal corporation, and the defendant Metz its officer charged with the duty of authorizing the payment of any moneys due or to become due on a contract with such municipality ; that a contract was made between the city and the defendant Wille for the erection of a municipal building for the sum of $30,000, in which building there were to be doors, windows and other manufactured woodwork. By the contract Wille agreed that he would comply with the provisions of chapter 415 of the Laws of 1897, as amended, known as the Labor Law, and that he would not permit or require any laborer, workman or mechanic in the employ of himself, or-subcontractor, or other person doing or contracting to do the whole or a part of the work embraced in his contract to work more than eight hours in any day, except in cases of emergency, and that he would pay the rate of wages prevailing in the locality, and that the contract should be void unless he should fully comply with such provisions of the Labor Law. In the course of construction, doors, windows and other manufactured woodwork required for the building and used in it were manufactured for the special purpose at the request of Wille by a manufacturer within the State of New York who employed workmen and mechanics more than eight hours a day and paid them less than the prevailing rate of wages in the city of New York. By the terms of the contract $1,000 is now due, and the plaintiff as a citizen of the State pursuant to the right given him by section 4 of the Labor Law (as amd. by Laws of 1899, chap. 567), challenges the right of. the city and its fiscal officer to make such payment on the ground that Wille by purchasing doors, windows and woodwork for the building from a manufacturer who employed his men more than eight hours a day and paid them less than the prevailing rate of wages, forfeited his contract and the right to any payment thereunder. The city, through its officers, refuses to declare the contract void and submits to the court whether or not it is its duty so to do.

Whether section 3 of the Labor Law (Laws of 1897, chap. 415, as amd. by Laws of 1899, chap. 567; Laws of 1900, chap. 298, and Laws of 1906, chap. 506), providing that every contract with the State or a municipal corporation involving the employment of laborers, workmen or mechanics, shall contain a stipulation that no such laborer, workman or mechanic in the employ of the contractor, sub-contractor or other person doing, or contracting to do, the whole or a part of the work, embraced in the contract shall be permitted or required to work more than eight hours a day, or be paid less than the prevailing rate of wages of the locality in which the work is to be done, and shall be void unless such stipulation is observed, be deemed constitutional or unconstitutional, the stipulated facts do not bring the contractor Wille within its provisions.

The manufacturer who worked his men more than eight hours and who did not pay the prevailing rate of wages was not a Subcontractor or other person doing, or contracting to do, the whole or a part of the work,” within the meaning of the statute. It was necessary that the windows and doors be made to measure, and, therefore, it was necessary that an order for their manufacture be given. The transaction amounted, however, to a mere purchase of material necessary for the building..

The construction of the statute contended for by plaintiff would follow the iron beams necessary for a building to the mines, the woodwork to the logging camp and the stone to the quarry, and would put a contractor to the hazard of forfeiture of his contract and all payments due him in the purchase of any material for the construction of any municipal building.

In 1905 the People adopted an amendment to section 1 of article 12 of the Constitution, providing that The Legislature may regulate and fix the wages or salaries, the hours of work or labor, and make provision for the protection, w’elfare and safety of persons employed by the State or by any county, city, town, village or other civil division of the State, or by any contractor or subcontractor performing work, labor or services for the State or for any county, city, town, village or other civil division thereof.” By virtue of this constitutional power the Legislature, by chapter 506 of the Laws of 1906, re-enacted section 3 of the Labor Law as it has been amendéd by chapter 298 of-the Laws of 1900, adding thereto only the provision that it should not apply to the “ construction, maintenance and repair of highways outside the limits of cities and villages.”

Assuming that the present law is free from the vices of the former law pointed out in People ex rel. Cossey v. Grout (179 N. Y. 417) and People v. Orange County Road Const. Co. (175 id. 84) and kindred cases, it cannot be held that the Legislature intended to include labor employed in the production of raw material necessary for municipal buildings and works. Presumptively, the Legislature enacts labor laws to benefit and aid labor. If the law be held to embrace purchased manufactured material and to work a forfeiture of the contract and all payments earned if in its manufacture and preparation for use the eight-hour law is not observed and the prevailing rate of wages of the locality is not paid, its presumed beneficent object will be defeated, for no municipal work will be done because no contractor will be foolhardy enough to enter into any contract liable to be annulled in such a manner. Labor laws, like any other law which the Legislature sees fit to enact, should be upheld by the courts where no constitutional violation exists, but no absurd interpretation which defeats their object should be permitted.

The situation is not changed because the defendant Wille contracted that he would forfeit payments if he violated the law. The material which he purchased did not come within the law as we view it, because the persons employed in the manufacture of the doors, windows and woodwork ultimately used in the building were not employed “ on, about or upon such public work ” within the meaning of the statute, and hence it was unimportant whether they were employed more than eight hours a day or were not paid the prevailing rate of wages.

Our conclusion is that the defendant Wille did not forfeit his contract and that he is entitled to the payment due under it.

Judgment is directed for defendant Wille, with costs.

Ingraham, Laughlin, Clarke and Scott, JJ., concurred.

Judgment ordered for defendant Wide, with costs. Settle order on notice.  