Driesbach v. City of New York , 1 N.Y.2d 272 ( 1956 )

Per Curiam.

Plaintiffs are employees of the City of New York in its department of hospitals. In this action they are suing under section 220 of the Labor Law to recover a differential between the basic salary and maintenance paid to them from 1942 to February, 1948, and the prevailing rate of wage. They were employed under the civil service title of “ maintenance man ”. During part of this interval of time; in addition to their basic pay, they received so-called ‘ ‘ cost of living ’ ’ bonuses from the city. These bonuses were paid under a plan designed to foster continuance of city employees in the public service during the period of emergency following the commencement of World War II, by increasing their take-home pay, without affecting their pension rights (Matter of Carroll v. Grumet, 281 App. Div. 35). The substance of the contention of these municipal employees is that inasmuch as cost-of-living bonuses formed no part of the basis on which their retirement allowances are computed, they should not be regarded as wages at all in determining what balances may still be due to them to compensate them at the prevailing rate. They seek to recover additional money to compensate them at the prevailing rate without deduction for this part of the remuneration which they have received. This contention cannot be sustained. These cost-of-living bonuses were paid to apply on the work for which these employees are now claiming that they were underpaid. They should be included as part of the remuneration actually received for performing the work which they were employed to do, and offset against whatever larger amounts may be represented by the prevailing wage rates (Zuckerbrod v. Board of Higher Educ., 278 App. Div. 822, appeal dismissed 302 N. Y. 942).

The judgment appealed from should be modified, without costs, by deducting from "the amounts awarded to plaintiffs whatever cost-of-living bonuses they received during the years in question, and, as so modified, affirmed.

Conway, Ch. J., Desmond, Dye, Fxjld, Froessel . and Van Voorhis, JJ., concur; Burke, J., taking no part. , .

Judgment modified in accordance with the opinion herein and, as so modified, affirmed, without costs. ' ■ ' •