Ewen v. The Thompson-Starrett Co.

The Thompson-Starrett Company has a contract with the city of Hew York for the erection of the new .municipal building. In this contract the Thompson-Starrett Company agreed with the city to comply with all the terms *172and provisions of the Labor Law, the eight-hour and prevailing rate of wages being set forth in full in the contract.

That portion of the contract which provided for the furnishing of the stone work was sublet to the Mt. Waldo Granite Works, which is doing a large part of this work at its place of business in Maine.

For the purposes of this motion, the Mt Waldo Granite Company stands in the same position as the ThompsonStarrett Company; and the work done by the former cannot be considered as a mere purchase of materials in the State of Maine, but is the doing of part of the work contemplated by the contract out of the State.

The question presented upon this motion is supply this: Can a contractor, under the Labor Law, agreeing with the city for municipal work, do a large part of the work out of the State; and, if he does, must he pay to the workmen on this out-of-State work the rate of wages prevailing in the city ?

The facts in this case are that the cutting, trimming and dressing of the stone pursuant to the plans and specifications are done in Maine at three dollars per day per workman, the prevailing rate in Yew York city where the municipal building is in process of erection being four dollars and fifty cents per day. It is conceded that for all work done within the State of Yew York the prevailing rate of wages has been and is being paid. Can a contractor, therefore, do part of the work out of the State, without paying the out-of-State workmen the rate of wages prevailing in Yew York State ? The plaintiff claims that he cannot and seeks by this motion an injunction under section 4 of article 2 of the Labor Law preventing payment of money earned under the contract. The defendants claim that there has been no violation of the contract or of the Labor Law.

1. There is nothing in the contract of the Thbmpson-Staxrett Company with the city of Yew York that requires the cutting, dressing and trimming of stone to be done within the State of Yew York. The details regarding the doing of this work are very full and complete, even providing in section 179 of the contract that “ all carving of granite work shall be hand-work done * * * under the direction of a *173master carver who shall have had at least five years’ expert ence as such,” etc., but I cau find among the numerous details no restriction as to the place of work.

2. There is nothing in the Labor Law (chap.. 36 of the Laws of 1909) which requires any work, or this work of cutting, trimming and dressing stone, to be done a/t or near the place of construction, or within the State of Yew York.

.Section 14 of chapter 415 of the Laws of 1897, requiring that all stones used in State or municipal work shall be worked, dressed and carved within the State, was declared unconstitutional in People ex rel. Treat v. Coler, 166 N. Y. 144. This provision, therefore, was not continued in the subsequent Labor Law. Whether such a provision would now be declared1' unconstitutional by the Court of Appeals may be open to question. Sufficient for this motion that there is nothing in the contract before me, or in the Labor Law, which would prevent the Thompson-Starrett Company, or the Mt. Waldo Granite Works, from working upon the stone outside of the State of Yew York.

If, therefore, this work can be done without the State, must the contractors pay the out-of-State workmen the wages prevailing within this 'State?

I. There is nothing in the contract or in the Labor Law which states so specifically.

II. Was section 3 of article 2 of the Labor Law intended to apply to any other workmen than those working within the State of Yew York ? The acts of a State Legislature can have no extra-territorial effect and, of course, should not be presumed to apply to any other conditions than exist within the State. Then, again, it is specifically stated in section 3 that the eight-hour provision only applies to employees in this State, and as the prevailing rate of wage clauses immediately follow in the same section it is the natural conclusion that these also apply only to workmen within the State. The wording • of section 3 indicates that it only applies to the work done in the 'State.

III. Also we might expect that, if the Labor Law of Yew York State is to be given the interpretation demanded by the plaintiff, we would find' in other States a like regula*174tion — the labor legislation throughout the country might reasonably be presumed to be uniform. This plaintiff is the financial secretary of the Hew York branch of the Granite Cutters’ International Association of America. The association, I take it, is interested in the welfare of the granite cutters in every State of the Union, and seeks uniform legislation where like conditions prevail. The Labor Laws, like the-Employers’ Liability Acts, have been a matter of gradual growth in the various States and have been reasonably uniform in their aims and purposes. While, therefore, no guide for the interpretation of the Hew York statute, it may be of some helpi in determining the purpose and intent of the statute, to refer to the Labor Law of Massachusetts (Laws of 1907, chap. 269, found in the supplement to the Revised Laws of the Commonwealth of Mass., p. 828) which reads: “Every contract, excluding contracts for the purchase of materials or supplies, to which the Commonwealth, or of any county therein, * * * is a party, which may involve the' employment of laborers, workmen or mechanics shall contain a stipulation that no laborer, workman or mechanic working within this Commonwealth in the employ of the contractor, sub-contractor or other person doing or contracting to do the whole or a part of the work contemplated by the contract, shall be requested or required to work more than eight hours •in one calendar day, and every such contract which does not contain this stipulation shall be null and void.”

It will be noted that this law specifically states that it only refers to workmen within the .State. Such is the policy of Massachusetts; such clearly to my mind is the meaning of the Labor Law of Hew York.

Counsel for the plaintiff insists, very strenuously, that, by taking the work into adjoining States, the purposes of the constitutional amendment of 190*5 and the* Labor Law of 190*9 can be defeated.

If individuals have that liberty of contract which enables them to provide that the work contracted for shall be done at a particular place, it may be difficult to understand why the State or a municipality thereof has not the same liberty of contract. When it comes to the question whether the *175Legislature can compel the municipality to require the cutting, trimming and dressing of stone to he done within the State of ¡New York, it may be that the constitutional amendment of 1905 is not broad enough to extend the power of the Legislature to such regulation and control. However, this matter is not before me and must finally rest, should such legislation he re-enacted, with the highest court of this 'State to again consider its own cases in the light of the Atkin case (Atkin v. Kansas, 191 U. S. 207) and the constitutional amendment of 1905.

For the reasons above stated tibe motion for injunction herein is denied.

Motion denied.