Hubbard v. Rodger — 82 N.Y. Sup. Ct. 220

Majority

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Willis C. Hubbard, Respondent, v. William C. Rodger and Eugene C. Johnson, Appellants, Impleaded with John J. McLane and Joseph Rockwell.

Headnote

•Canal contractor’s bond for laborers’ wages — shoi’t Statute of Limitations — right of an assignee to enforce it.

In tlie short Statute of Limitations in favor of sureties upon a canal contractor’s b’ond for tlie payment of laborers’ wages, created by tbe provision of section 3 of chapter 378 of the Laws of 1850, that “no recourse shall be had to the sureties upon such bond, unless proceedings shall be commenced within thirty days after the completion of the labor, the payment of which is secured by such bond,.” the words “completion of the labor” do not refer to the completion of the contract, but the meaning is that a laborer must institute his action against

. the sureties on the bond within thirty days from the completion of his individual labor for which he seeks compensation.

•Qurnre, whether said chapter 378 of the Laws of 1850 creates any liability on the part of the sureties upon a canal contractor’s bond executed in compliance therewith, in favor of an assignee of laborers’ claims for wages.

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Appeal by tbe defendants, William 0. Rodger and Eugene C. Johnson, from a judgment by tbe Supreme Court in favor of tbe plaintiff, entered in the office of tbe clerk of Erie county on tbe 8th day of July, 1892, upon tbe report of a referee.

The action was brought by tbe plaintiff as tbe assignee of tbe claims of a number of laborers, employed by tbe defendants McLean and Rockwell in tbe work of lengthening a lock on tbe Erie canal under a contract with the State, to recover the amount alleged to be owing such laborers by tbe contractors, upon a bond executed by tbe contractors as principals and by tbe defendants appellants as sureties.

Zouis Marshall, for tbe appellants.

G. F. Whitcher, for tbe respondent.

The appellants are tbe sureties in a bond given by tbe contractors for certain work on tbe Erie canal, pursuant to tbe requirements of chapter 218 of tbe Laws of 1850 (Birdseye, p. 390, § 18). The plaintiff is tbe assignee of tbe claims of a number of laborers employed by the contractors on the work. All tbe labor performed by tbe several assignors, and for which tbe contractors were indebted to them, was completed more than three months before tbe commencement of this action, while, as tbe referee finds, tbe entire work under tbe contract was not completed until less than thirty days before that date.

This statement of facts presents two questions of law which are considered by tbe referee in bis opinion and upon both of which bis conclusions are in accordance with the plaintiff’s contention.. The questions are: First. Whether section 1 of the statute above cited, which prescribes the conditions of the bond, creates any liability, on the part of the sureties-in such bond, in favor of an assignee of the claim of laborers; and, second, whether this action, as against the sureties, was barred by the limitation of time prescribed by section 3 of the same statute.

The full text of the statute is as follows:

“ § 1. It shall be the duty of any canal commissioner or other officer having charge of the letting of any contract for work on any

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of the canals or other public works of this State, to require and take, in addition to the bond now required by law for the security of the State, a bond with good and sufficient sureties, not less than two, conditioned that such contractor shall well and truly pay in full, at least once in each month, all laborers employed by him on the work specified in such contract, which bond shall be duly acknowledged before an officer authorized to take acknowledgments of deeds, and filed by the officer taking the same in the office of the clerk of the county wherein such contract or work is to be performed. And when such work shall be partly in two or more counties, there shall be such a bond filed in the clerk’s office of each county.

“ § 2. Suits may be commenced on said bond before a justice of the peace, when the amount claimed shall not exceed the jurisdiction of a justice of the peace, and a transcript of such bond, duly authenticated by the county clerk, may be used in evidence in such suit.

“ § 3. The bringing of a suit by one or more laborers upon such bond shall not operate as a bar to the bringing of other suits thereon by any of the parties for whose benefit such bond was taken and to whom such contractor shall be indebted for labor. But no recourse can be had to the sureties upon such bond, unless proceedings shall be commenced within thirty days after the completion of the labor, the payment of which is secured by such bond. But nothing in this act contained shall prevent or bar a suit against such contractor within the time limited by law.”

. Upon the plain reading of this statute we think the conclusion of the referee on the second of the questions above stated was erroneous. In order to avoid the application to this case of the short Statute of Limitations, in favor of sureties, contained in the 3d section, he construes the words “ thirty days after the completion of the labor, the payment of which is secured by such bond,” to intend thirty days after the completion of the entire labor expended upon the work under the contract — in other words, the labor of all the laborers employed on the work. It is true that the payment of all this labor is intended to be secured by the bond, but it is equally true that the bond is, by its express terms, as well as its general tenor, intended as security to each man individually, and that as to each man who may have occasion to resort to it, “ the labor, the pay-

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meut of which is secured by such bond,” is his own labor, and that alone. The single and commendable purpose of the statute is to secure to every laborer on the public works prompt and regular payment of his wages, “ at least once in each month.” This purpose would be entirely defeated if each man’s remedy against the sureties in the bond were postponed until every man’s labor on the entire work was completed, which might not be in many months, or even years. The whole tenor of the, statute is opposed to such a construction'. It is careful to afford every facility for the prompt and easy enforcement of the remedy provided. It provides for proof at hand in every case, and a ready and inexpensive tribunal, and that each man shall have his action, unaffected by whatever action has been taken by others. All its provisions indicate the purpose to give an individual security and an individual remedy. It requires security for the payment of every man’s wages at least once in each month. How is this security afforded by a bond which can be enforced only after the completion of the entire work, be the time longer or shorter ?

Nor do we find anything in the particular terms employed in the statute which necessitates a construction opposed to the general tenor .of its provisions. The criticism which is made upon the use of the word “ completion,” instead of “ performance ” of the labor, etc., seems to us more nice than forcible. Indeed, there is one view in which the use of the word completion is necessary to the construction which we adopt. Each man’s labor is “ performed ” daily, and payment for each day’s labor is secured by the bond; but it was evidently not intended that the bond should be enforcible. for each day’s wages. Whereas each man’s labor, for the payment of which security is given, is “ completed ” either at the expiration of each month, or sooner, when his connection with the work ceases.

And so, we suppose, it to be the purpose and effect of this statute, and of the bond given in compliance therewith, that if a man’s wages are not paid at the end of every month during which he labors, or at the expiration of Iris whole time, he has, then, his remedy -against the sureties by his action on the bond ; otherwise, the bond does not afford security for the payment of his wages “ at least once in each month,”, as by its terms it purports to do.

If such is the true construction of the statute, and of the bond

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given in conformity therewith, then the thirty days’ limitation of time within which proceedings were required to he commenced for the enforcement of this bond, as against the sureties therein, had fully run against each of the plaintiffs assignors before the commencement of this action, and the action was barred thereby.

This conclusion, which seems to us unavoidable upon the conceded facts of the case, so completely defeats the plaintiff’s action that we deem it unnecessary - to consider the other question proposed, the answer to which is, perhaps, not so clear.

The judgment appealed from should be reversed and the complaint dismissed.

Lewis, Haight and Beadlev, JJ., concurred.

Judgment appealed from reversed and the complaint dismissed.