and 102 New York State Reporter misleads the bar and lower bench for a generation; and then (after it has done its mischief) the court which published it gives out that it was never an official utterance at all, but only the views of one or a minority of its judges. In respect of the plaintiff's evidence that the signature to the wife's deed was hers, that may seem also to be "concerning" the personal transaction between him and his wife, in that it goes to establish that such transaction took place; but there is precise authority for its competency. Simmons v. Havens, 101 N. Y. 427, 5 N. E. 73. The very recent case of Boyd v. Boyd, 164 N. Y. 234, 58 N. E. 118, is cited to the contrary; but the opinion on that head by the learned judge there writing is concurred in by no other judge; and the point was not involved in the actual decision of the court at all. That such opinion is neverthelss published seems strange; but of course it cannot be regarded as an official utterance, especially after the plain admonition not to heed such utterances given to bench and bar in Colonial City Traction Co. v. Kingston City R. Co., 154 N. Y. 493, 48 N. E. 900, as follows: "A judicial opinion, like evidence, is only binding so far as relevant” (i. e.. relevant to the actual decision of the court), "and when it wanders from the point at issue it no longer has force as an official utterance. The failure to read the opinion of courts with this fact in mind gives rise to much fruitless litigation." As all the judges concurred in this warning, it would be clear that it must be taken as "an official utterance" were it not that the opinion which it knocks in the head (Colonial City Traction Co. v. Kingston City R. Co., 153 N. Y. 540, 47 N. E. 810) was also concurred in by all the judges. But however it is to be taken, the question why an appellate court should publish in the place which belongs to the court's opinion, an opinion which a majority of its judges refuse to adopt or concur in, remains a serious one to a trial judge. Though he may not be able to perceive a permissible reason for it, it is no doubt his duty to try to believe that there is one. The frequency of these so-called nonofficial utterances, and their citation as authority, are becoming a great burden to trial judges. It may not be amiss to point to another one of them in the very same volume. Smith v. Railroad Co., 164 N. Y. 491, 58 N. E. 655. My personal observation of the witnesses rather inclined me to the plaintiff; but on careful consideration I think the weight of evidence is against him. Judgment for the defendants without costs. (57 App. Div. 315.) CANTINE v. RUSSELL et al. (Supreme Court, Appellate Division, Third Department. January 9, 1901.) ACTION FOR ATTORNEY'S SERVICES-SETTLEMENT OF ESTATE-BILL OF PARTICULARS-MOTION TO CORRECT-DISCRETION OF SPECIAL TERM. In an action by an attorney for services and disbursements in connection with the probate of a will and the settlement of the estate, plaintiff rendered a bill of particulars, stating each item of disbursements, placing a value agreed on for some small services; and the remaining services specified in his bill, rendered in probating the will, in the appraisal and inventory, in advertising for claims, publishing and serving notices, attending the settlement of the executors, bringing and defending suits, foreclosing mortgages, and the like, he valued in the lump at $20,000. Held, that the special term exceeded its discretion in denying a motion for a corrected bill of particulars. Parker, P. J., and Merwin, J., dissenting. Appeal from special term, Ulster county. Action by Peter Cantine against George W. and Frederick T. Russell. From an order of the special term denying a motion for a corrected bill of particulars, defendants appeal. Reversed. Argued before PARKER, P. J., and KELLOGG, EDWARDS, MERWIN, and SMITH, JJ. Brinnier & Searing, for appellants. KELLOGG, J. The plaintiff brings this action for services as attorney at law and disbursements made, making a claim amounting to $20,305.57, and covering the time between May 12, 1896, and Janu ary 1, 1900. He has, upon defendants' demand, rendered a bill of particulars, stating each item of disbursement, aggregating $204.07, and placing a value agreed upon for some small services, aggregating $101.50, and giving the value of the remaining services in one lump sum, $20,000. This bill of particulars upon which the charge of $20,000 is based shows services in items,-items separate and distinct from each other, and such items as an attorney at law ordinarily makes a separate charge for. Each item is distinctly independent of every other, and susceptible of a separate valuation. The valuation is in no way dependent upon other services, and can neither be increased nor diminished by any relation to other services, because they have no relation. The plaintiff rendered services in the probate of a will, and states that he was engaged therein from May 12 to May 28, 1896, and that finished this character of service. I see no reason why he should not state what he claims it to be worth. The same is true as to services rendered in the appraisal and inventory, since he gives the time employed. Such service is not unusual in the profession, but simple and ordinary, and for the most part clerkly, service. The same may be said as to advertising for claims and putting notices in a newspaper, and the service of notice on parties to be cited. The service attending the judicial settlement of the executors is also a separate service, and appears so in the bill of particulars rendered, and has a value which plaintiff's books should show, if kept as the books of attorneys ordinarily are. The same is true as to suits brought or defended and specifically instanced in the bill rendered. The same is true as to each action for the foreclosure of each separate mortgage. Indeed, each item named in the bill of particulars served has a value well known to practicing attorneys; and why plaintiff would not be required to state what he claims for each item, or what he intends to prove on the trial each item is worth, I fail to see. The advantage of this to defendants is obvious. The defendants may admit the value to be as claimed, and there will be no need and 102 New York State Reporter of calling witnesses. If defendants do not admit, they will know what witnesses to call, and what claim they have to combat. The mak ing of a claim of such proportions, and surrounding it with a nebula of professional opinion, and putting it through as a single pellet, when it is susceptible of analysis and separation into distinguishable parts, is not encouraged in courts of justice. It affords too serious grounds for charges of unfairness, of privileges extended to officers of the court which no layman enjoys. To each and every item of the bill of particulars served, the plaintiff should place a value,-the value he intends to claim upon trial. Such is the rule adopted as to family physicians, who may be also said to serve under as general a retainer as the plaintiff here claims to have served. This is not the case of a single lawsuit, in which the services for the whole suit may be esti mated in a single sum, and so estimated because of the necessary fusion of all of the items. Nor is this such a matter as is considered in Feeter v. Arkenburgh, 147 N. Y. 237, 41 N. E. 518. That was a declaration as to the meaning in the Code of Civil Procedure of the term "long account," in determining whether or not the action was referable under the Code. That case has no more bearing on the question of the propriety of a bill of particulars than it would have had were it cited in the Beecher Case, where times and places and persons were required to be stated, through the office of a bill of particulars. I think the special term committed such serious error in refusing to grant the motion that it cannot be covered by the discretionary power accorded to it, and the order should be reversed, with $10 costs and disbursements of this appeal, and the motion granted, with $10 costs. All concur, except PARKER, P. J., and MERWIN, J., dissenting. (57 App Div. 310.) DOWNEY v. BENDER et al. (Supreme Court, Appellate Division, Third Department. January 9, 1901.) MASTER AND SERVANT-HOURS OF LABOR-PUBLIC WORKS. The supply of gas and electricity for illumination and power to the capitol and executive mansion of the state, by a company engaged in supplying gas and electricity to the public generally, is not a "public work," within Laws 1897, c. 415, amended by Laws 1899, c. 567, prohibiting laborers to be employed for more than eight hours in any day on public works. Appeal from special term, Albany county. Action by Patrick J. Downey against Harry H. Bender, as superintendent, etc., and others. From a judgment for defendants, plaintiff appeals. Affirmed. Argued before PARKER, P. J., and KELLOGG, EDWARDS, MERWIN, and SMITH, JJ. William E. Woollard, for appellant. Reilly & Hamilton, for respondent Municipal Gas Co. KELLOGG, J. The ground of demurrer discussed upon this appeal is that plaintiff's complaint fails to state a cause of action. The plain tiff is not a party in interest, but brings the action as a citizen, and alleges that the Municipal Gas Company has a contract with the state of New York, and in the performance of its contract has violated the provisions of the so-called "Labor Law" (chapter 415, Laws 1897, amended by chapter 567, Laws 1899), in that it has permitted or required laborers to work more than eight hours in one calendar day; and plaintiff, for that cause, brings this action to annul the contract, as he is permitted to do by that act. The allegations of the complaint are that the Municipal Gas Company was at all times mentioned ih the complaint "engaged in the manufacture and supply of gas and in the supply of electricity for lighting and heating purposes in the cities of Albany and Watervliet, N. Y.," and the complaint sets forth in extenso the contract made with the state. While the plaintiff has no interest in the contract, and cannot avail himself of any breach of its conditions, it is necessary to look into the contract for the purpose of learning what was the nature of the thing the Municipal Gas Company undertook to do, and for that purpose only is it material. Such an examination is necessary in order to discover whether the provisions of the labor law claimed to have been violated in performance are in fact provisions which properly apply to a contract of this nature. The material parts of the contract are as follows, viz.: "The said party of the first part [the Municipal Gas Company] covenants and agrees that it will furnish ard supply for the use of the state at the new capitol and executive mansion in said city of Albany, and for the purpose of lighting the same, a sufficient quantity of electric current to supply and operate at all times during the day and night ninety-eight hundred and five (9,805) sixteen (16) candle power incandescent lamps and forty-six (46) two thousand (2,000) candle power arc lamps, and sufficient power to run and operate one elevator in the new capitol, and will also furnish and supply a sufficient quantity of gas of a suitable and proper quality for the lighting of the new capitol and executive mansion, and for the use of heating logs in said executive mansion. The party of the first part also covenants and agrees that it will furnish and supply all needed renewals of incandescent lamps, and all carbons, renewals, and repairs of arc lamps." A further allegation of the complaint is "that the defendant the Municipal Gas Company during every hour of each day has furnished as aforesaid and does furnish for such buildings, in its performance of said contract, electricity and gas, both or either, and which is supplied from its common output; that in the manufacture of such product it employs workmen for the full period of twenty-four hours daily," and it further alleges that such workmen labor 12 hours each day. No violation of the law is claimed on account of insufficiency of the wages paid, or because of failure to pay for overwork. It is the contention of the plaintiff that what the Municipal Gas Company has contracted to do is a public work, and that it must be done by laborers working only 8 hours each day. The Municipal Gas Company claims that it has contracted to do no public work, or work for the state, and its business of manufacturing and distributing gas, and creating or accumulating and distributing electricity for general consumption in the cities of Albany and Watervliet, as alleged in the complaint, is not to be controlled by the provision of the labor law referred to; that the supply of gas and electricity agreed to be fur68 N.Y.S.-7 and 102 New York State Reporter nished at the capitol building and the executive mansion flows, as the complaint alleges, from the "common output" of this defendant; that what it contracted to supply and deliver at the capitol and executive mansion was a commodity, a finished product, usually metered and sold by measure for daily consumption. For the purposes of this case we may concede that the legislature representing the state has the undoubted right to say that it will not permit any laborer to work for it more than eight hours in any day, or more than one hour, for that matter, and that it has the right, also, to say to the fiscal officers of the state that they shall not contract for the labor of any man beyond a certain number of hours each day, and may restrict contractors and the subcontractors on work for the state in like manner as to hours of labor. We may also concede that the state might go even further, and refuse to purchase any brick or stone or cement or ink or paper or ironware, or, indeed, any commodity whatever, in the production or manufacture of which labor was employed for a longer time than eight hours, or a less number of hours, per day. No one disputes that the exercise of such power is a right which a private individual enjoys. It is not, however, disputed, but conceded, that the state is powerless to limit the daily hours which one man may work for another, and the state has not the power to say that a laborer, after he has wrought the number of hours permitted on public work, may not during the same day work elsewhere for an unlimited time. The question here is not what the legislature might enact, but what has it enacted? It is concededly the statute law that (except persons regularly employed in state institutions) no person shall be employed directly to labor for the state more than eight hours in any one day. This includes all employment on any of the public works of the state, whether such works are being carried on by the state directly, or through contractors or subcontractors. This seems, stated in a general way, to be as far as the legislature has gone in its restriction of hours of labor. It has apparently confined the restriction to that class of employment which is commonly known as "public work." That class of work the state has exclusive control of. It has never yet manifested any intention to exclude itself from the general market in its purchase, or in its contracts for the purchase, of any article whatever. When the state is engaged in public work and needs labor, then it has plainly declared the limitation as to hours of labor. When the state requires the delivery of a manufactured article, whether for construction of public works or for consumption, it purchases or contracts for the delivery wherever it can, for the lowest price. So far it has kept a free hand, and does not inquire how many hours each day any man labored in the production of the article needed. The so-called "Labor Law," so far as it pertains to this case, reads as follows (section 3), viz.: "Each contract to which the state is a party which may involve the employment of laborers, workmen or mechanics shall contain a stipulation that no laborer or mechanic in the employ of the contractor, sub-contractor or other person doing or contracting to do the whole or a part of the work contemplated by the contract, shall be permitted or required to work more than eight hours in any one calendar day. The wages to be |