Chapter 622, Laws of 1894, became a law May 10, 1894, and added to section 2 of the law of 1870 the following: "All such mechanics, workingmen and laborers so employed shall recover 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

As will be observed, the statute of 1870, though regulating the hours of labor, contained no provision pertaining to the compensation to be paid therefor. The law of 1894 not only retained the regulation as to hours of labor, but made provision as to the compensation to be paid for a legal day's work to the class of persons named therein. The Court of Claims found that the prevailing rate of wages in the locality where claimant was employed was $1.50 per day of eight hours.

The Legislature having fixed the compensation to be paid to claimant as found, $1.50 for a legal day's work, the duty of the Superintendent of Public Works was clear. He was powerless to increase or diminish the amount of compensation fixed by law. (Kehn v. State of N. Y., 93 N. Y. 291); Clark v. State of N. Y., 142 N. Y. 101; Pitt v. Board of Education, N. Y. City, 216 N. Y. 304, and cases there cited.) It was incumbent upon him to ascertain the prevailing rate of wages in the localities where mechanics, workingmen and laborers were employed by the state and regulate the compensation for each as required by the amended law. Such compensation was to be paid for eight hours' labor. He could not demand or permit twelve hours' labor for such compensation. He had the alternative of employing additional help for the remaining eight hours or permitting the locktenders then employed to continued to work the additional hours and receive for the same the prevailing rate of wages for such extra hours. Having adopted the latter plan it was incumbent upon him to pay from the appropriation made therefor the amount of compensation contemplated and fixed by the Legislature.

The Attorney-General urged in support of his appeal two propositions which do not appear by the opinion of the Appellate Division to have been passed upon: First, that claimant was not a mechanic, workingman or laborer within the meaning of the statute. The labor performed by a locktender is so generally understood that precedents would seem unnecessary. This court has, however, considered the question adverse to such suggestion (Clark v. State of N. Y., 142 N. Y. 101; Drake v. State of N. Y., 144 N. Y. 414), rendering further discussion unnecessary. Second, that claimant by acceptance of a monthly salary and his signature on the monthly payroll receipting therefor, waived the right to additional compensation. Such conclusion would permit an officer of the state to defeat the beneficent purpose of the statute and violate its provisions. The State expressed its intention as to the rate of compensation and the fact that claimant accepted a reduced compensation does not estop him from recovering the residue fixed by law. (Clark v. State of N. Y., 142 N. Y. 101; Pitt v. Board of Education N. Y. City, 216 N. Y. 304.)

Claimant seeks to recover interest. I think he is entitled to the same from the date of the filing of his claim. He had earned the compensation fixed by law, the amount of which was not only fixed but ascertainable and known to the State. The Superintendent of Public Works was required to pay the rate of wages stated in the statute and a failure to extend to claimant the

benefit of the statute entitled him to interest on the sum found due to him by the Appellate Division. In that particular the judgment of the Appellate Division should be modified, with costs to claimant in this court.

Judgment modified by adding interest on the claim as allowed from date of filing, and, as so modified, affirmed.

B. ALLEGED VIOLATION MUST NEGATIVE EXTRAORDINARY EXCEPTION

Plaintiff, a contractor, brought action against defendant, a village, to recover a balance due for laying pavements, building bridges and other municipal improvements. The contract was made in 1906 and the action to recover payment was begun in 1908, resulting in a judgment for the plaintiff. The judgment was reversed in 1911 (145 App. Div. 483) and a new trial granted. On the second trial, defendant introduced a new defense, namely, that plaintiff had employed workmen in excess of eight hours per day, contrary to the provisions of section 3 of the Labor Law, and asked permission to amend its answer so as to state that the overtime work was not within the "extraordinary emergency" provision of the law. Permission to do this was denied. Judgment was again rendered for plaintiff and affirmed by the Appellate Division (158 App. Div. 456).* The Court of Appeals has affirmed the judgment, holding that the defendant was required to prove that the alleged violation was not within the emergency exception, and that the trial court was within its rights in refusing to admit such proof. The pertinent portion of the opinion written by Hiscock, J., follows:

MOLLOY V. VILLAGE OF BRIARCLIFF MANOR, 217 N. Y. 577 (April 11, 1916), in part.

The defendant claimed on the trial that in carrying out his contract plaintiff required or permitted his employees to work more than eight hours a day in violation of the provisions of section 3 of the Labor Law (Cons. Laws, Ch. 31), and that this violation barred his right to recover. Its offer to introduce evidence in support of this claim, however, was refused on the ground that this defense was not permissible under the general denial of plaintiff's complaint and that it was not sufficiently pleaded as an affirmative defense.

Plaintiff's complaint, after setting forth the contract, alleged that he "proceeded to perform and carry out the said contract and has performed large quantities of work thereunder, and had on or about the 1st day of * See Department Bulletin, No. 70, pp. 71–72.

*

November, 1907, fully completed the same according to the plans, drawings and specifications as changed and varied by the engineer and said work has been duly accepted by the defendant." These allegations were met by a general denial. It is a familiar rule that plaintiff under such allegations need only prove such facts as are necessary to entitle him to recover, and that defendant under a general denial can only give such evidence as legitimately tends to disprove the facts necessary to be established by the plaintiff. (Milbank v. Jones, 127 N. Y. 370, 376; Weaver v. Barden, 49 N. Y. 286.)

Therefore, the real underlying question becomes the one whether plaintiff was obliged to prove as part of his case that he had not violated the Labor Law. If he was not, it is plain that it was necessary for defendant to plead such alleged violation as an affirmative defense. The answer to this question requires in the first instance a consideration of the pertinent provisions of the statute.

After quoting § 3, the court continued:

The statute thus attempts to enforce compliance with its prohibition of labor in excess of eight hours in a day in two ways. First it requires that certain clauses looking to the observance of its commands must be incorporated in the written contracts in order to make it valid. This requirement relates to the form and inception of the contract, and if it is violated the defect shows on the face of the instrument. There is no claim that the contract in question here does not comply with these provisions, and, therefore, it was valid at the time of its execution.

Then is found a provision relating to something which must of necessity occur after the contract has been executed. It provides that a contract valid in its inception shall become void and the contractor be barred from recovering any compensation under it if in the course of its performance he shall violate the statute, and this is the provision involved here.

If we take a technical view of this clause and say that it creates a condition subsequent with which the contractor must comply, it is well settled that it does not rest with the plaintiff to prove as part of his case that he has complied with and has not violated a condition subsequent, but that it rests with the defendant seeking to prove an avoidance of a valid contract by breach of such a condition, to plead the same. (Redman v. Aetna Ins. Co., 49 Wisconsin, 431, 436; Nagle v. City of Buffalo, 34 Hun, 1, 4; affirmed as to this principle, Reining v. City of Buffalo, 102 N. Y. 308.)

If we define the question in a less technical manner as to whether a party seeking to recover on a contract valid on its face must show that he has not been guilty of such a violation of some general statute as would bar a recovery, we find the rule well settled that he is not compelled thus to do, but that the defendant claiming such violation must plead the same as an affirmative defense. (Milbank v. Jones, supra; Dykers v. Townsend, 24 N. Y. 57, 63; Crane v. Powell, 139 N. Y. 379, 388; Hunt v. City of New York, 47 App. Div. 295; McNulty v. City of New York, 168 N. Y. 117; Morford v. Davis, 28 N. Y. 481.)

Adopting the conclusion, therefore, that the defendant was bound to plead a violation of the statute as a defense to this action, the final question arises

whether its attempt thus to do was successful. It alleged that "The said plaintiff in the manner of performance of the said contract mentioned in said complaint, violated the provisions of the statute of New York in such case made and provided, in that he permitted or required laborers, workmen or mechanics in his employ in doing the said work contemplated by said contract, to work more than eight hours in one calendar day."

The statute which has already been quoted prohibited work during more than eight hours in any one calendar day except in certain emergencies. Thus the prohibition which defendant claims plaintiff violated contained quite a broad and certainly a well-defined exception, and there seems to be no doubt that the obligation rested upon defendant in pleading a violation of the statute to negative the application of the exception and allege that plaintiff did not come within the benefits thereof. (Rowell v. Janvrin, 151 N. Y. 60, 67; Harris v. White, 81 N. Y. 532.)

Assuming, therefore, for the purposes of the discussion that such facts existed as not only permitted but required defendant under the statute to resist payment of plaintiff's claim, it has failed properly to assert such facts, and is not in a position to take advantage of them.

The application by the defendant on the trial for the privilege to make another amendment to its answer was addressed to the discretion of the trial court and we have no power to review it.

The judgment appealed from should be affirmed, with costs.

C. MUNICIPAL CONTRACTOR'S EMPLOYEE, SURVEY COMPANY'S LIABILITY TO

FOSMIRE v. NATIONAL SURETY Co., 189 App. Div. 44 (Sept. 10, 1919)

abstract.

A firm of contractors entered into a contract with the State of New York to improve a highway, agreeing that it would comply with section 3, article 2 of the Labor Law. A bond to the State was executed by the defendant surety company conditioned among other things for the payment of "the wages stipulated and agreed to be paid to each and every laborer employed by the said principal or his agents." The contractor became insolvent and plaintiff, an employee thereof, brought an action against the defendant to recover his wages. The Appellate Division, Third Department, held that the action could be maintained as the agreement of the surety inured to the benefit of the plaintiff.

IV. ONE DAY REST IN SEVEN

A. VALIDITY OF PROVISION

The provision for one day of rest in seven has been attacked as unconstitutional. In holding such provision valid, the court said:

PEOPLE V. NIAGARA FALLS POWER Co., 86 Misc. 61 (June, 1914), in part.

"I think this act in question is a valid exercise of the police power of the state, because it has a reasonable connection with public health, welfare and safety. From time immemorial it has been considered necessary for the physical welfare of the individual that he should have one day's rest in seven and laws securing this have been held constitutional.

"The state is interested in building up strong, virile citizens to till its soil and develop its industries in times of peace and to defend it in times of war; and, by appropriate laws within reasonable bounds, can guard the health and welfare of the individual from the cradle to the grave. Sunday is the day generally selected as a day of rest, because it is the day regarded as sacred by the greatest number of citizens,' and 'causes the least inconvenience.' This statute does not close down this power plant and stop these railroads on Sunday. The state recognizes the great inconvenience which would result therefrom, and leaves the day of rest to be selected to any seven days of the week."

As to constitutionality further, see reference, B, post.

B. POSTING AND FILING SCHEDULE OF SUNDAY WORK, CONSTITUTIONALITY OF PROVISION AS TO

The statutory requirement of one day's rest in each calendar week for factory and mercantile employees has been sustained by the Court of Appeals in People v. Klinck Packing Company, 214 N. Y. 121.* Subdivision 3 of this section, relative to posting by the employer of a list of the employees who are designated for Sunday work and the filing of such list with the Industrial Commission, was later attacked as being burdensome, arbitrary, unreasonable and therefore unconstitutional. The subdivision has, however, been held to be a valid administrative regulation by the Appellate Division in the following opinion:

PEOPLE V. EBERHART, 171 App. Div. 458 (Jan. 28, 1916). PUTNAM, J.: Appellant committed a breach of an administrative provision of the Labor Law, requiring in factories and mercantile establishments one day of rest in seven." (Consol. Laws, chap. 31 [Laws of 1909, chap. 36], *The text of the opinion in this case was printed in Bulletin No. 70 at pp. 32-43.