182 Misc. 344 | City of New York Municipal Court | 1943
Motion to strike out the affirmative defenses is granted. Paragraphs 5 to 10, inclusive, are stricken from the answer.
The invalidity of both of the alleged separate and complete defenses (paragraphs 7 and 10 of the answer), asserting a release but not alleging facts to show the existence of a bona fide dispute, is clearly indicated by the decision in Campbell v. Mandel Auto Parts Corporation (31 N. Y. S. 2d 656, affd. [1st Dept.] 264 App. Div. 701).
I think that the requirements of the Fair Labor Standards Act of 1938 (U. S. Code, tit. 29, § 201 et seq.) may not be circumvented by a mere recital in the release that the employee releases the employer of liability for sums due under the statute in order to “ induce ” the latter “ to enter into a contract
Each of the first complete defenses (paragraphs 5, 6, 8 and 9 of the answer) is also insufficient. A dispute as to the constitutionality of the Fair Labor Standards Act or its application to the parties is merely a dispute concerning questions of law. The fact that the parties misunderstood the law, or could not, although excusably enough, understand it, will not enable the employer to avoid the law by paying, as a settlement, a lesser wage than the minimum required by the statute. I believe that no agreement by an employee to accept less than the minimum wage prescribed by law is binding upon him, whether such agreement is made before or after the wage has been earned and has become due, and that the existence of an honest dispute is quite immaterial. I do not consider it necessary to review the various cases on the subject, pro and con, among which are the following: Asaro v. Lilienfeld (36 N. Y. S. 2d 802); Rubin v. Meadow Provision Co. (39 N. Y. S. 2d 517); Rubin v. Meadow Provision Co. (39 N. Y. S. 2d 518); Rigopoulos v. Kervan (47 F. Supp. 576) ; Bailey v. Karolyna Co., Ltd. (50 F. Supp. 142).
That the settlement in this instance was approved by a justice of the Supreme Court is also immaterial. That approval apparently was necessary only because defendant is a trustee in a proceeding pending in that court. The approval constituted judicial sanction for the payment of moneys, by the trustee, by the court which appointed him and to which he continued to be responsible. The validity and binding effect of the settlement were not determined.
Defendant strongly relies upon an impressive opinion in Guess v. Montague (140 F. 2d 500). That case, however, is not favorable to defendant insofar as any claim for a balance due as minimum wages is concerned, because the court held that such a claim could not be settled at all, but that only the claim for liquidated damage could be compromised. Parker, J., said: “ As we have seen, the policy of the law forbids settlement for less than the minimum wage which the statute prescribes, but there is nothing in the statute
I need not now determine whether settlements of the claims in this case for liquidated damages were valid , because defendant has not pleaded any defense specifically based upon the settlement of such a claim, but has pleaded broadly a settlement of all claims, including therein any sums still due as minimum wages. As to the plaintiff Cassese, defendant may have a complete defense in line with the Guess case (supra), for according to the figures stated in the complaint Cassese has already received more than the full minimum wage due him and is really claiming only liquidated damages. In the case of plaintiff Weinstock there would seem to be only a partial defense at best, for Weinstock alleges that the minimum wages earned by him have not been paid in full.
‘ In order that the issues may be properly presented and so that the question of defendant’s right to assert a settlement
Order signed.