[142 N.Y.S.2d 452] Alfred Weinstein, New York City, of counsel (Seymour B. Quel, New York City, on the brief; Peter Campbell Brown, Corp. Counsel, New York City, attorney), for appellant.
Emil K. Ellis, New York City (Jonas Ellis, New York City, on the brief), for respondents.
Before CALLAHAN, J. P., and COHN, BREITEL, BASTOW, and RABIN, JJ.
Plaintiffs were and most of them still are employed by the sanitation department of the City of New York as crane enginemen. They were appointed from competitive civil service lists and prior to March 15, 1945, were paid on a per diem basis for 313 days a year at the then prevailing rate of $15 a day. They earned $4,695 annually. On the date mentioned, as a result of instructions from the director of the budget and because of budgetary changes resulting from a rise in prevailing wage rates, plaintiffs and others similarly employed were offered agreements providing for a yearly salary of $4,000 for 313 days of work. Plaintiffs refused to accept the agreement and thereafter continued as per diem employees, but were only given employment for 250 days in each year. They continued to be so employed until each of them at varying times signed annual contracts. The last such contract was signed in 1948. This action was instituted in 1950 by plaintiffs to recover the prevailing wage rate per diem for the days lost during the
period commencing March 15, 1945 and ending February 2, 1948, as the result of their being allowed only 250 days each year.
Because of the reduction in the number of plaintiffs' working days the City employed provisionals to fill the gap for there had been no reduction in the amount of work that had to be done. These provisionals were paid for and performed the work for which plaintiffs now seek to recover.
The City takes the position that plaintiffs being per diem employees are subject to the rule of 'No work, no pay.' On the other hand plaintiffs contend the rule does not apply in this case because the work was available, they were willing to perform it and were illegally deprived of it by the device of employing provisionals.
There is little doubt that the City had no right to employ provisionals in the circumstances shown. Sheridan v. Kern, 255 A.D. 57, 60, 5 [142 N.Y.S.2d 453] N.Y.S.2d 336, 339; Britt v. Kern, 279 N.Y. 701, 18 N.E.2d 321; Civil Service Law, § 15. The fact, however, is that the City did employ provisionals and continued to do so during the period for which plaintiffs seek the additional pay. It is also the fact that during this same period, that is from March 15, 1945, to February 2, 1948, plaintiffs made no attempt to compel the City to discontinue the employment of provisionals. Had they done so it seems clear that under the decisions referred to the City would have been compelled to discontinue the practice. The present action was not commenced until more than 5 years after March 1, 1945, the date when the City reduced plaintiffs' working days to 250 per annum. Plaintiffs after that date worked only five instead of six days a week. The sixth day's work, thus lost to plaintiffs, was absorbed by the provisionals. Although plaintiffs neither worked on that sixth day each week, nor took any steps to compel the City to cease employing provisionals, they now demand that they be given the pay.
The learned Court below in a carefully considered opinion held that the City may not deprive civil service employees of work by substituting in their place provisional employees. We agree entirely with that conclusion. But on the facts of this case we think that before allowing recovery it is necessary to go further and determine whether plaintiffs, by their failure to contest sooner the unlawful action of the City, have not themselves barred a recovery.
While as indicated the City was clearly wrong in 1945 in hiring provisionals to perform the work that would have been done by plaintiffs who had Civil Service status and were thus entitled to the protection of the laws enacted for their benefit, nevertheless
we feel that there was a duty on the part of the plaintiffs at that time to take some action to correct the wrong. Having failed to take that action it may be said that to ...