McCaffrey v. State of New York

Lehman, J. The claimant accepted employment as a lock laborer in the State service. His wages were fixed by agreement and he has been paid the wages he agreed to accept. The statute (Laws of 1929, ch. 479) does not provide that the wages of a laborer shall be determined by any rule or standard; it does provide that the State shall not pay less than the prevailing rate of wages in the same trade or occupation in the locality within the State where the claimant is employed. All laborers are entitled to the protection of the statute, but when a laborer claims that the stipulated wages which he has received are less than such prevailing rate, he has the burden of establishing his claim by proof. The claimant has shown that the prevailing rate of wages paid by contractors to “ common laborers ” in the same locality is fifty cents an hour. If the plaintiff was employed by the State to exercise the trade or occupation of a “ common laborer ” then the proof is sufficient, though the nature of the employment be described as a “ lock laborer ” and no other lock laborers be employed in that locality. That is clear. The proof, however, is otherwise. A common laborer, employed by a contractor, is one who is employed to perform heavy unskilled work such as enters into road and building construction. It is casual work done by the hour and calling for constant muscular effort. Here the claimant was employed, not *161 by the hour, but for long periods each year to assist in tending a lock. His work called for no constant muscular effort. Intermittent effort was called for at times when vessels were passing through the lock. His trade or occupation was more nearly analogous to that of a watchman, a bridge tender or even a farmhand than to that of a common laborer in construction work. Perhaps no others in that neighborhood are engaged in similar trade or occupation. Then there can be no prevailing rate of wages. Perhaps the claimant merely failed to show a rate which does exist. We are concerned only with the fact that, without proof of a prevailing rate, the claimant fails to show that he has received less than the prevailing rate. It is not the purpose, or effect, of the statute that the compensation of all laborers shall be determined by some prevailing rate of wages. In order to avoid evils that might rise from payment of compensation less than the prevailing rate paid in the same trade or occupation in the same locality, the Legislature has imposed a limitation upon the contractual rights of the State. The limitation does not apply under the express terms of the statute, or by reasonable implication, where the proof fails to show that others are employed in the same trade or occupation in that locality. Though the work performed for the State need not be identical with work performed in the same trade or occupation for other employers, it must at least fall within the same general category. Judgment should be affirmed, with costs.