Opinion
Argued May 26, 1952
Decided July 15, 1952
Appeal from the Supreme Court, Appellate Division, First Department, GREENBERG, J., WALTER, J.
Denis M. Hurley, Corporation Counsel ( Alfred Weinstein, Seymour B. Quel and Howard C. Fischbach of counsel), for appellant. Sidney A. Fine and Morris Weissberg for respondents.
Petitioners, ninety-three in all, are stationary engineers (electric) employed in various departments and agencies of the city of New York. They seek additional compensation, pursuant to the prevailing rate of wages under section 220 of the Labor Law, for work performed on late shifts and on Sundays between January 14, 1944, and May 22, 1947. We agree with the courts below that the reversal ( Matter of Smith v. Joseph, 275 App. Div. 201, affd. 300 N.Y. 516) of the comptroller's original 1947 determination, excluding these shift differentials, inures to the benefit of all the stationary engineers who filed complaints in that original proceeding, and whose interests were united with those of the person appealing, even though they did not appeal. They are definitely persons affected by the final determination. However, that issue is not dispositive of the instant case.
We are constrained to hold that the releases executed by petitioners in 1948 following the 1947 comptroller's determination preclude their recovery of the additional compensation during the aforesaid period for Sunday and night work, awarded as the result of the judicial review of said original determination. In addition to the customary language of a general release, the instruments expressly recited the waiver of a particular claim "by reason of services heretofore rendered by me as an employee of The City of New York, and more particularly by reason of any claim for difference in wages heretofore received by me" during the period in question. It would be difficult to employ clearer language to bar the claims of petitioners with respect to the shift differentials sought herein. To hold otherwise would be to render the releases quite meaningless.
Petitioners had consulted with and received the approval of their attorney before signing the releases. They were executed in the light of the proceedings terminating in the original 1947 determination. The minutes of the May 9, 1947, hearing conclusively establish that at the time of their execution, petitioners were aware of the controversy in regard to shift differentials, inasmuch as they had made specific claim thereto, and their attorney, who represented them throughout the litigation, took exception to the comptroller's adverse ruling.
We see no merit to petitioners' contentions that the releases are against public policy and prohibited by subdivision 8-a of section 220 of the Labor Law, which merely deals with a failure to protest and not with a solemn release duly executed and acknowledged under circumstances as here presented (cf. Civil Service Law, § 8-a). Matter of Dinan v. Patterson ( 193 Misc. 92, affd. 275 App. Div. 801). Nor would they fail for lack of consideration (Debtor and Creditor Law, § 243). Payment by the comptroller prior to the final determination (see Labor Law, § 220, subd. 8) in settlement of a known but undetermined controversy constitutes a valid consideration.
The orders of the Appellate Division and Special Term should be reversed and the petition dismissed, with costs in all courts.
LOUGHRAN, Ch. J., LEWIS, DESMOND, DYE, FULD and FROESSEL, JJ., concur; CONWAY, J., not sitting.
Orders reversed, etc. [See 304 N.Y. 947.]