Misc.] Supreme Court, June, 1900. twelfths years. It cannot be held that under a limited surrender of the children there is any justification for this action on the part of the respondent. I do not think the point well taken that because the children in this case are not before the court this writ must be dismissed. See People ex rel. Stewart v. Paschal, 68 Hun, 345. It is admitted in the letter from Mr. Williams, the President of the New York Juvenile Asylum, to the Reverend Mr. Kinkead, that the children were sent west apparently under a misapprehension, and that the society apparently had not the legal right to do so, as the father was alive- see letter of September 22, 1899. The removal of the children under such circumstances may be regarded, I think, as equivalent to taking them beyond this State for the purpose of avoiding its jurisdiction; and the case in this respect differs most widely from the case of Forsyth, and that of The People ex rel. Winston v. Winston, 31 App. Div. 121. In the Forsyth case there was no question as to the limited surrender, and the right to apprentice the child to a person residing out of the State was clear from the facts presented. In the Winston case the child was in the custody of its mother, who, it was not denied, was a resident of the State of New Jersey. In this case the respondent is a resident of this State, and subject to the jurisdiction of the court. And it presents no justification for sending the children, without the consent of the father, beyond such jurisdiction. In doing so it committed an illegal act, which ought not to be available as sustaining a plea of want of jurisdiction on the ground of the absence of the children. The fact that the State of Illinois has passed an act declaring that indentures for apprenticeship of any minor theretofore made, or hereafter made and executed between the New York Juvenile Asylum, a corporation, created by act of the Legislature of the State of New York, passed June 30, 1851, and any citizen in that State, in substance and form as provided by its act of incorporation shall be valid and binding, does not affect this case; because such act can have no extraterritorial force, and also because, if the views above stated are correct, the indentures in question are not in substance such as the asylum was authorized to execute under its charter. Nor do I regard the point taken by the respondent's counsel to the effect that as the persons to whom the children have been apprenticed have refused to surrender them to the asylum, that it is incumbent upon the petitioner to resort to the courts of Illinois for redress. Concededly he has Supreme Court, June, 1900. [Vol. 32. been deprived by the respondent of the custody of his children beyond the period for which they were surrendered, not only without his fault but against his protest. To compel him under such circumstances to incur the expense of legal proceedings for the recovery of his children would be a hardship to which he should not be subjected. He has the legal right to the custody of his children, and he cannot be deprived of it by the misapprehension of the respondent. It is also urged by the respondent that the father now wishes to secure the custody of his children for the reason that they may render services which will be pecuniarily beneficial to him. There is nothing before me to show that such is his motive. But even if it is, he has a legal right to those services. I am of the opinion, therefore, on all the facts, that the respondent should be compelled to restore the children to the custody of the petitioner. Ordered accordingly. THE PEOPLE ex rel. WILLIAM J. ROGERS, Relator, v. BIRD S. COLER, as Comptroller, etc., Respondent. (Supreme Court, New York Special Term, June, 1900.) Municipal corporation rate of wages. Contractor with it bound to pay prevailing The Legislature has power to determine the rate of wages to be paid by a municipality to its employees. Chapter 567 of the Laws of 1899, amending chapter 415 of the Laws of 1897, is constitutional, and is designed to secure the prevailing rate of wages, not only to those employed by a municipal corporation upon its public works, but also to those employed by contractors, with such a corporation, to do like work for it. One who bids upon a city contract, containing a provision for the payment of the prevailing rate of wages, must be deemed to have assented to that rate, and where he has not subsequently paid it, he cannot compel the city to pay his claim for the contract work. APPLICATION for a peremptory writ of mandamus. Kellogg, Rose & Smith, for relator. John Whalen, Corporation Counsel (E. J. Freedman, of counsel), for respondent. Misc.] Supreme Court, June, 1900. LEVENTRITT, J. This is an application for a peremptory writ of mandamus commanding the respondent to deliver to the relator a proper warrant on the City Chamberlain for the payment of an amount earned under the relator's contract with the city of New York. The respondent has refused the warrant on the ground that the relator has failed to comply with the provisions of the Labor Law (chap. 415, Laws of 1897, as am'd by chap. 567, Laws of 1899), incorporated in his contract, in that he has not paid the prevailing rate of wages. The facts are undisputed, the relator resting his rights on the claim that the contract provision in question is unconstitutional, and is, therefore, to be disregarded. The Law of 1897 provided that the prevailing rate of wages should be paid on all work done "for the State or a municipal corporation, or for contractors therewith." Although the provision applicable to the State or municipal corporation is omitted in the Law of 1899, the Appellate Division in the recent case of McAvoy v. City of New York, 52 App. Div. 485, held that the present statute intended to protect those who are employed by a municipal corporation on public works, as well as those who are employed by contractors, to do like work for a city. In that case the court say: "The policy of the law is that laborers, mechanics and workmen employed upon public work shall receive the prevailing rate of wages paid in the locality where they are employed." It is, I think, as little subject to dispute that the Legislature or the government may determine the amount of wages to be paid by a municipality to those in its employ, as it is clear that in the absence of considerations of public health, morals and safety, it is without power to prescribe terms between individual employer and employee. McAvoy v. City of New York, supra; People v. Warren, 77 Hun, 120; People ex rel. Warren v. Beck, 10 Misc. Rep. 77, 78; United States v. Martin, 94 U. S. 400. The relator argues that as an independent contractor, he falls within the latter class, and that the Legislature was without power to limit his right to contract. His contention is, I think, answered by the case of People ex rel. Warren v. Beck, 10 Misc. Rep. 77. There the construction of a section of the charter of the city of Buffalo, providing that contractors with the city should bind themselves not to accept more than eight hours as a day's work, was involved, and Hatch, J., said: "Had the city itself performed this work, it would have been within the rule we have announced, and Supreme Court, June, 1900. [Vol. 32. subject to the obligation imposed by the law. How can the defendant plead exemption from such statute when it has voluntarily in terms incorporated it in its contract and agreed to be bound by and carry out its terms." The act of the relator in entering the competition for the municipal work was voluntary; he was advised by the usual advertisement of the terms of the contract; he knew that the city was under obligation by virtue of valid legislative enactment to pay the prevailing rate of wages; he was under no compulsion to bid for the work; he was willing to act for the city and to assume the conditions imposed upon it of his own free will; and apprised of the facts he entered into an agreement which he cannot now be heard to disavow. "Defendant, by bidding and accepting the contract, became the recipient of all the benefits which accrue therefrom, and he should not now be heard in repudiation of lawful obligations assumed thereby." People ex rel. Warren v. Beck, supra. The motion must be denied. Motion denied. THE PEOPLE ex rel. OTTO METZ, Relator, v. FRANCIS J. LANTRY, as Commissioner of Correction, Respondent. (Supreme Court, New York Special Term, June, 1900.) 1. Civil service — Temporary position in New York city. An appointment to a position in the civil service of the city of New York, made in 1898 and when no eligible list for the position existed. is temporary in its nature, and the appointee may, under the rules of July 11, 1899, be summarily discharged in one month from the latter date. 2. Same Construction of Regulation 43 of the Rules of March 5, 1898. Semble, that, under Regulation 43 of the Civil Service Rules in effect March 5, 1898, a person who was honorably dismissed from the service of the city in August, 1895, but had never passed any examination for his position in the classified service, could not, upon applying for re-employment within three years next ensuing, be appointed permanently, and could only be appointed temporarily. APPLICATION for a writ of peremptory mandamus. Misc.] Supreme Court, June, 1900. Mayer & Gilbert (Julius M. Mayer, of counsel), for relator. John Whalen, Corporation Counsel, for respondent. LEVENTRITT, J. The relator was a gatekeeper in the department of charities and correction from the 18th day of April, 1892, until the 14th day of August, 1895, when he was dismissed without any fault or delinquency on his part. On the 2d day of May, 1898, the respondent made a requisition on the municipal civil service commission for an eligible list for the position of keeper in his department, and on the same date received an answer advising him that at that time none existed, and that pending the preparation of a suitable eligible list, temporary appointments to the position of keeper might be made. Thereupon and on the thirty-first day of May, the respondent appointed the relator by the following order: "Otto Metz is hereby reappointed temporarily in this department as keeper, and assigned to duty at third district prison at a salary at the rate of $800 per annum, in place of John J. O'Connor, keeper, who is transferred to penitentiary, at a salary of $800 per annum ". On the 25th day of September, 1899, an eligible list was received by the respondent from the municipal civil service commission, and the name of the relator not appearing thereon, he was on that day dismissed by verbal notice. No charges were preferred against him, nor was any statement of the cause of the dismissal furnished the relator or filed with the commission, nor was any opportunity for a hearing given. I am of the opinion that none of these preliminaries were requisite and that the relator was properly and necessarily removed. It must be apparent from the undisputed facts that the appointment of the relator was a temporary one under Regulation 34 of the Rules of the Civil Service Commission, which became effective on the 5th day of March, 1898, and which were in force at the time the relator was placed in his former position. That regulation provided: "When there is no eligible list for the position for which a requisition is made. and upon receipt of a certificate to that effect from the secretary of the civil service commission, any department may make a temporary appointment to said position, and an eligible list shall thereupon be * * * |