12 N.Y.2d 998 (1963)

Wholesale Laundry Board of Trade, Inc., et al., Respondents, and Blake Laundry, Inc., et al., Intervenors-Respondents, v. City of New York, Appellant. New York State Restaurant Association, Inc., et al., Respondents, v. City of New York et al., Appellants.

Court of Appeals of the State of New York.

Decided February 28, 1963.

Attorney(s) appearing for the Case

Leo A. Larkin, Corporation Counsel (Seymour B. Quel, John F. Kelly, Pauline K. Berger, George H. P. Dwight and Bernard Friedlander of counsel), for appellants.

Myron P. Gordon, David M. Bluestone, Jacob N. Kliegman and Stanley Israel for Wholesale Laundry Board of Trade, Inc., and others, respondents, and for intervenors-respondents.

Godfrey P. Schmidt for New York State Restaurant Association, Inc., and others, respondents.

Kenneth W. Greenawalt and Raymond T. Munsell for Commerce & Industry Association of New York, Inc., amicus curiæ.

Victor Rabinowitz for American Communications Association, amicus curiæ.

Concur: Chief Judge DESMOND and Judges VAN VOORHIS, BURKE and FOSTER. Judges DYE, FULD and SCILEPPI dissent and vote to reverse; Judge DYE in an opinion in which Judges FULD and SCILEPPI concur and Judge FULD in a separate opinion in which Judges DYE and SCILEPPI concur.

In each action: Judgment affirmed, without costs, upon the opinion (17 A.D.2d 327) in the Appellate Division.

DYE, J. (dissenting).

I dissent and vote to reverse on the ground that the City Minimum Wage Law is a constitutionally valid enactment. It merely provides that every employer shall pay to each employee a wage of not less than $1.25 per hour and $1.50 per hour one year hence which, when in force, will not result in the payment to any employee of a wage less than the State law minimum of $1.15 per hour, or less than $1.25 per hour after October 15, 1964. The local law here challenged does not permit what the State law prohibits and is not inconsistent therewith but, rather, supplemental thereto and in aid of its stated policy. In dealing as it does with conditions peculiar to the City of New York involving the preservation and promotion of the health, safety and general welfare of its inhabitants resulting from inadequate wage rates, it constitutes a proper exercise of the city's police power (N. Y. Const., art. IX, § 12; City Home Rule Law, § 11, subd. 2; New York City Charter, § 27; People v. Lewis, 295 N.Y. 42). When the City Council acts to protect local needs it will be upheld, especially when such action is in aid and furtherance of the State law (People v. Sampsell, 248 N.Y. 157). It may not be said that the State has pre-empted the field simply because the State law is State-wide in its application, particularly when it does not forbid enactment of a local law such as this.

The judgments appealed from should be reversed, with costs, and judgment should be rendered in favor of the city declaring the City Minimum Wage Law to be valid and constitutional.

FULD, J. (dissenting).

I find nothing in the State Minimum Wage Law (Labor Law, § 650) which gives evidence of any legislative design to exclude consistent local legislation and, since the New York City Minimum Wage Law (Administrative Code of City of New York, § 1113-1.0 et seq.) neither prohibits what the State statute affirmatively permits nor permits what it prohibits, I perceive no such conflict as to require the local law to be stricken as unconstitutional. There is no inconsistency between a city law and a State statute dealing with the same subject simply because the local law provides higher minima or standards than those prescribed by the State law. In the present case, both enactments are prohibitory, the only difference between them being that the local law goes further than, not counter to, the prohibition contained in the State statute.1

It is only necessary to add that, in my view, New York City had power to pass the local law before us under its police power, enacted as it was to eliminate the threat to the health, welfare and safety of the city's inhabitants from conditions peculiar to the city, stemming from inadequate wage rates. In short, where a municipality possesses the power, as I believe here to be the case, to enact consistent local laws for the protection of the public health, welfare and safety of its residents, it may permissibly act to extend or increase the prohibition enacted by the State in a general State-wide statute in order to meet local needs and such extension and increase of State-wide prohibitory action does not render the local law inconsistent with such State law.

I would reverse the judgments appealed from and render judgment declaring the City Minimum Wage Law valid and constitutional.

Judgments affirmed, etc.


1. If I be correct in this analysis, then, the provisions of the City Home Rule Law relied upon barring adoption of a local law which "supersedes" (§ 21, subd. 5) or "amends" or "repeals" (§ 11, subd. 4) a State statute did not prevent enactment of the legislation before us. (Cf. People v. Sampsell, 248 N.Y. 157, dealing with subdivision 8 of section 21 of the City Home Rule Law.)


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