121 N.Y.S. 388 | N.Y. App. Div. | 1910
The defendant is a corporation carrying on a brewery in the city of Clean, and in the year 1908 the plaintiff was in its employ as a teamster. When he began work in April of that year he drove his own horse and received two dollars and fifty cents per day. He testified that during this employment an arrangement was' made between him and the president and secretary of' the defendant to the effect that when horses of its own were used in the business and he became a member of the Clean branch of the International Union of. United Brewery Workmen of America the defendant’s contract with that organization would regulate the compensation of the plaintiff.
In the month of May the plaintiff became a member of the Olean branch of'this union and about the middle of June he commenced driving on a beer wagon a hqrse. of the defendant, and continued, in that: employment until he was laid off in January following ■ for the reason that the business- of the defendant did not justify his retention.
. TELe, was paid fifteen dollars each week for his services, signing a Receipt therefor upon each payment, and if nothing else appeared there would not be much basis for the claim of the plaintiff.
■ The evidence shows that he worked overtime and he. testified that he kept close track, of this extra work day by day and presented an itemized statement upon the trial, showing ihat it amounted during the year to 251 hours, and he has. commenced this action to recover for such' overtime services. He- testified that at several times he made claims to the officers of the- defendant; for compensation for this extra work as stipulated in the agreement referred -to with the union. He testified. also that lie first made a charge for overtime to Mr. Homer* the secretary, and the latter said to him, “ How,, he says, we' will have to bring that about. I don’t keep the time; H'abberstrumpf keeps the time, I says, the contract calls for overtime and the contract was to take effect when I commenced to drive your rigs and I think I am. entitled to what the contract calls for. Q, What did he say % A. He said he would have to see. He didn’t keep the time.” He also made a like claim to Mi'- Habberstrumpf, who was.the brewmaster of the defendant and kept the timé of the men, but Habberstruinpf did not recognize the claim, telling the plaintiff if he was not satisfied with the- fifteen dollars a week he would give him a job in the bottling works.
Mr. Sigel, the president, Mr. Homer, the secretary, and the brew-master deny specifically that there was any promise ever given to the plaintiff to pay him more than fifteen dollars per week. The president testified that the beer drivers employed by ■ a rival
Again, the plaintiff testified on liis recross-examination that after he was laid off in January he spoke to Mr. Sigel on the subjéct, saying “ it looked funny my being laid off, the oldest driver, after putting in overtime all summer;” indicating that he was not expecting pay for such overtime. The putting in of extra time would be no inducement for his continued employment when. business was dull, if he was to be paid for that extra time.
It is probably true that the contract entered into by the defendant with the union ean.be read into the agreement with the plaintiff. (Keysaw v. Dotterweich Brewing Co., 121 App. Div. 58.)
The existence of that agreement, however, did not prevent the parties to this action from regulating the compensation to be paid to the plaintiff. They could make an independent agreement disregarding the one with the union, and they did that, if we are to
The judgment of the County Court and of the Justice’s Court Should be reversed, with costs to appellant in this court and in the courts below.
All concurred.
Judgment of County Court and judgment of Justice’s Court reversed, with costs in all courts to appellant.