Opinion
Argued November 20, 1945
Decided March 7, 1946
Appeal from the Supreme Court, Appellate Division, First Department.
T. Robert Gabrielli for Thomas W. Blaney et al., petitioners-appellants.
Ignatius M. Wilkinson, Corporation Counsel ( Howard C. Fischbach and Francis J. Bloustein of counsel), for Joseph D. McGoldrick, appellant and respondent.
These are cross appeals by petitioners and the Comptroller of the City of New York in a proceeding brought to review a determination as to the prevailing rate of wages of letterers employed by the City of New York. It is a companion case to Matter of Giannettino v. McGoldrick ( 295 N.Y. 208), decided herewith, and some of the matters decided there are determinative of points raised herein. Thus, the comptroller here, as in the Giannettino case, made a deduction of 10% in the prevailing rate of wages as determined by him for vacation and pension benefits. That was error and requires the remission of this proceeding to the Appellate Division.
The comptroller cross-appealed from the decision of the Appellate Division that the complaints of Hoof and Hilscher were properly verified. The order appealed from is a nonfinal order and the appeal must be dismissed.
The comptroller found that labor performed by privately employed letterers came under three categories, viz.: 1. Commercial, 2. Outdoor Advertising, and 3. Theatrical Advertising. He was of the opinion that the work of city-employed letterers fell within the group denominated by the Brotherhood of Painters, Decorators and Paperhangers of America in one of its local unions in New York City as commercial letterers. He pointed out that in outdoor advertising and theatrical work the performance of the labor was confined almost exclusively to work on scaffolding, involving personal danger, and thus resulted in higher rates of wages. He referred to the fact that the Municipal Civil Service Commission defined the duties of a letterer as follows: " Letterer: To be familiar with the quality and use of the different kinds of paints and varnishes; to mix paints and colors in proper proportions; to paint signs and to do lettering of any description; perform related work." It is true that there was evidence in the record that some of petitioners used scaffolds occasionally but we cannot say as a matter of law that the comptroller's determination was arbitrary.
It is conceded by the respective parties that if the complaints of Hoof and Hilscher were properly verified the comptroller must make a determination as to prevailing wages for the period from January 1, 1935, to January 1, 1938, by virtue of Labor Law, section 220, subdivision 5-d. Since those complaints were properly verified, such determination must be made.
As to the claims of the petitioners, Blaney, Lipari and Wabshinak, we agree with the Appellate Division that each is entitled to the benefit of the determination for the period commencing with the date of the filing of his verified complaint. ( Campbell v. City of New York, 291 N.Y. 461, 465-466; Matter of Gaston v. Taylor, 274 N.Y. 359, 366; Matter of Carr v. Kern, 279 N.Y. 42, 48; Matter of Simpson v. Taylor, 278 N.Y. 643.)
Appeal by the Comptroller of the City of New York from so much of the order of the Appellate Division as decided that the complaints of the petitioners Hoof and Hilscher were sufficient in form as verified complaints should be dismissed on the ground that that part of the order does not finally determine a special proceeding within the meaning of the Constitution; and, otherwise, the order should be modified in accordance with this opinion, and as so modified affirmed, without costs.
LOUGHRAN, Ch. J., LEWIS, DESMOND, THACHER, DYE and MEDALIE, JJ., concur.
Ordered accordingly.