Article X. It is further agreed by the above-named parties that, if, either of the above-named parties wish to change the above agreement at its expiration, they shall give at least thirty (30) days' notice in writing. Article XI. It is further agreed by the above-named parties, that all provisions in this agreement shall be binding on both parties from June 1, 1912, to March 1, 1915.

Contractors.

WM. M. FREDERICHS,

GEO. L. SWAN,

E. L. ALBRIGHT,
F. N. SCHUBMEHL,

J. E. SUMMERHAYS.

Laborers.

Jos. CIECHANOWSKI,
CHAS. P. GAST,

ALBERT ROEGNER,

A. WILBUR,

COSMO CAMELIO.

DECISIONS OF NEW YORK COURTS.

Prevailing Rate of Wages Law.

Waiving of Rights. Plaintiff was employed as a bricklayer by the fire commissioner of New York City in 1903 and continued in such employment for more than five years at a salary of $939 per year. In 1908, he brought action against the city to recover the difference between the compensation received by him and the prevailing rate of wages, amounting to $4,177.20, alleging a violation of section 3 of the Labor Law, which required that the wages paid should "not be less than the prevailing rate for a day's work in the same trade or occupation" in the locality where the work was performed. The complaint was dismissed by the court at the trial term, from which judgment appeal was taken to the Second Appellate Department, where the judgment dismissing the complaint was unanimously affirmed. Plaintiff on the day of, or the day after, the appointment learned that his salary had been designated at a sum less than the prevailing rate of wages, and five days after his appointment he made a protest to the deputy fire commissioner, and thereafter made various protests to deputy commissioners and superintendents, but never protested to the fire commissioner himself, or to the disbursing officer of the city. During the entire period, plaintiff did not actually lay brick more than fifty days, but acted as superintendent or acting inspector of buildings, and performed other work. The court said in part: I think that the plaintiff's continuance in the discharge of the duties assigned to him during more than five years at a salary designated at the time of his employment and concededly known to him within a day thereafter; his monthly receipting of the pay-rolls without protest and his performance of work other than that of bricklaying, during most of the time in question, establish a contract at the rate designated in the certificate of employment, and that such protests as were made to deputies and subordi nates were ineffectual to destroy the effect of his acts or to preserve any right he may have had to receive the rate of wages prevailing in the bricklaying trade. It would seem quite obvious that he chose the certainty of an annual salary, payable regardless of the nature and amount of the work performed, in preference to the uncertainty of a higher per diem wage, dependent upon the amount of time he was actually engaged at work.

In Ryan v. City of New York, 177 N. Y. 271, it was held that the statutory right to the prevailing rate of wages may be waived and that an acceptance of a lesser rate, without protest during six years, constituted such waiver.

In McCarthy v. Mayor, etc., 96 N. Y. 1, it was held that the acceptance by the plaintiff at regular intervals of his pay from the city showed conclusively that such pay was in full for the services performed and barred a recovery for compensation for extra hours of employment.

In Grady v. City of New York, 182 N. Y. 18, the McCarthy case (supra) was cited with approval, and the court held that the fact that the employee protested regarding his salary to an officer connected with the department in which he was employed, and was told to await the result of a litigation with the city on a similar claim, was immaterial when such official had no authority to pay for overtime.

In Clark v. State, 142 N. Y. 101, cited by the learned counsel for the plaintiff, there was no contract, either express or implied, at the beginning of the claimant's employment fixing a compensation less than the statutory rate. Byrnes v. City of New York, 150 App. Div. 338.

Contract of Employment.

Hearing Before Discharge. A unanimous decision in the Second Department of the Appellate Division has to do with an employee's right to a hearing before suspension or discharge where the contract of employment provides for such hearing. The following extract gives the essential facts and decision.

The action is for damages for breach of a contract of employment. The complaint alleges that prior to March 17, 1909, plaintiff and defendant entered into an agreement by which defendant hired and employed plaintiff, and plaintiff agreed to work for defendant as a yardman in the capacity of yard conductor at defendant's railroad yards at an agreed compensation of three dollars per day. It further alleges that in pursuance of said agreement plaintiff entered the employ of defendant and continued in its employ to March 17, 1909, on which day he was discharged. If the contract of employment contained no terms or provisions other than those above specified defendant must succeed, for, where such contract is not for a specified term, it may be terminated at the will of either of the contracting parties. Wood Mast. & Serv. (2d ed.) 159; Martin v. Insurance Co., 148 N. Y. 117; Williamson v. Taylor, 48 Eng. C. L. (5 Q. B.) 175. But the complaint contains this further allegation: "That in and by the terms of said employment it was provided that plaintiff as such yardman would not be suspended (except suspension pending investigation), discharged or have record entered against him without a hearing and full investigation, which would be given promptly; that he might have present during such investigation any actual witnesses of the occurrence under investigation, except discharged employees, and when found blameless, would receive full pay for the time lost." In effect, therefore, the contract provided that the term of plaintiff's hiring should continue until he had been given a hearing and full investigation,

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with the right to call "witnesses of the occurrence under investigation." While the subject of the hearing and investigation is not expressly stated, it must relate to some occurrence." As the only occurrence" which could properly be the subject of an investigation respecting his continuance in service must be some alleged dereliction in duty, we think that the contract fairly implies that it shall continue until such dereliction is established. This view is confirmed by the provisions of the contract to the effect that if found "blameless" after suspension he shall receive full pay for the time lost. He can be found culpable or blameless only with reference to his own conduct. The complaint alleges that plaintiff was not given a hearing or full investigation, and that he was not afforded the opportunity to present any witnesses in his behalf. The contract was not, therefore, legally terminated by defendant. It is true that the decision of the master after such hearing as to the sufficiency of the charge may be final and conclusive in the absence of such bad faith as would constitute fraud, but, when the parties have thus agreed, the servant has a right to insist upon a full investigation, relying upon the fairness and justice of the master. Crotty v. Erie R. R. Co., 149 App. Div. 262.

Employers' Liability: (a) Law of 1910.

Assumption of Risk. Plaintiff's intestate, in the employ of defendant, was killed, while working in a trench, by a fall of earth subsequent to blast. In an action for damages, a jury rendered a verdict for defendant. The Fourth Appellate Department reversed the judgment and ordered a new trial holding that, in view of the 1910 amendment to section 202 of the Labor Law, the trial judge had committed reversible error in charging that, even though defendant was negligent in that his foreman failed to inspect the bank after the blast to determine whether it was a reasonably safe place to work, if deceased continued to work in the trench knowing of the failure to inspect, then deceased assumed the risk and defendant was free from liability. The court also held that it was reversible error for the trial judge to refuse to charge, as requested by plaintiff, that, if the fall of earth was due to a defect that could have been discovered by defendant's foreman by reasonable inspection, the death of deceased was not due to assumed risk. Caboni v. Gott, 149 App. Div. 440.

Negligence of Foreman. Defendant was the general contractor for the erection of a building in Manhattan. In October, 1911, plaintiff, a boy seventeen years old, was killed while in employ of defendant. Action was brought against the general contractor and also against the owner of the building under the Employers'

Liability Law as amended in 1910. In the first trial, the complaints were dismissed, but, at a special term of the Supreme Court, the nonsuit against the general contractor was reversed and a jury trial granted.

The accident occurred while plaintiff's intestate was leaning over an opening in the sixth floor to lower a bundle of bolts by means of a rope. A heavy timber, which had been left standing near the opening, fell upon him from behind and knocked him into the opening causing his instant death. In granting motion. for a new trial as to the general contractor, the court said in part:

It may be granted that there is a distinction between cases in which the person injured in such an accident as that under consideration is a stranger, and those in which he is a servant of the defendant. The master is liable for the negligent acts of every employee resulting in injury to a stranger; but he is not liable for the negligent acts of every employee resulting in injury to another employee, but only for the negligence of certain classes of employees. At common law, the plaintiff does not seem to have made out a case, because, applying the doctrine of res ipsa loquitur, the occurrence of the accident does not necessarily point to the negligence of any person for whose negligence the master would be responsible at common law. In other words, it would be quite as reasonable to infer that the accident was the result of the negligence of some one who at common law would be a fellow servant, as that it was the result of any want of care imputable to the master. But the employer's liability provisions of the Labor Law have greatly extended the class of employees for whose negligence the master is liable to other employees injured thereby, so that this class now includes many who at common law would have been fellow servants. Where the injury results from any defect in the " ways, works, machinery or plant" the master is liable where such defect has not been discovered or remedied owing to the negligence of the master, or of any person in the service of the master and intrusted by him with the duty of seeing that the ways, works or machinery were in proper condition." Labor Law, § 200, subd. 1. The master is also liable where the injury to the servant is caused by the negligence of any person in the service of the master "intrusted with any superintendence," or by reason of the negligence of any person intrusted with authority to direct, control or command any employee in the performance of the duty of such employee. Id., § 200, subd. 2. In the case at bar it would seem that the occurrence of the accident and the surrounding circumstances point to the negligence of the foreman in not observing that the timber in question was placed in an insecure position near the well hole, or, if he saw it, in not removing it or properly securing it. It would seem reasonable to say that the jury might have inferred from the evidence that, had proper care been exercised by those for whose negligence the master is responsible under the Labor Law, the accident would not have happened. Thus the case is one for the application of the doctrine of res ipsa loquitur. Ferguson v. Turner Construction Co., 76 Misc. 333.