Opinion
January 17, 1962
Present — Bergan, P.J., Coon, Gibson, Herlihy and Reynolds, JJ.
Proceeding under article 78 of the Civil Practice Act to review a determination of the Board of Standards and Appeals confirming Modified Minimum Wage Order No. 6-e. By chapter 619 of the Laws of 1960 (Labor Law, §§ 650-665) the Legislature required the Industrial Commissioner to modify all existing minimum wage orders so as to increase the minimum wage to $1 per hour. In doing so the Commissioner was permitted to determine the value of benefits received by employees in certain industries other than cash wages, and to make allowance therefor in fixing the wage. The Commissioner was required to hold public hearings before fixing such allowances. The Commissioner did hold public hearings in connection with the Summer hotel industry, which is here involved, at three different places within the State after public notice and, at the hearings, heard statements and testimony, received briefs and written statements from all interested parties who cared to attend (including this petitioner who appeared by counsel and submitted considerable data). Thereafter the order here questioned was made. The petitioner complains because the Commissioner prepared and submitted to interested parties in advance a "proposed" order. This was clearly done merely to provide a basis for discussion and not as a predetermination. Petitioner complains that witnesses were not sworn and were not subject to cross-examination. This was clearly not an adversary proceeding and the type of hearing contemplated by the Legislature was a legislative type for the purpose of gathering information and it was not essential that witnesses be sworn or opportunity for cross-examination be afforded. ( Matter of Town of Waterford v. Water Pollution Control Bd., 5 N.Y.2d 171.) Petitioner further contends that the Commissioner made inadequate allowance for such items as gratuities and for meals and lodging furnished to employees. This was a factual determination supported by adequate evidence and should be sustained. Determination unanimously confirmed, without costs.