76 N.Y.S. 89 | N.Y. App. Div. | 1902
I am unable to find any legal justification for the judgment rendered. There are authorities holding that in certain cases where the extra service required is entirely without the sphere of the service for which the contract was made, or where the extra service exacted was such as required special skill or qualifications, in such case the law will imply an agreement for extra compensation. This rule is based upon the probability that for such service there was an intention on the part of the master to pay extra compensation upon which the servant might rely. But this rule must be cautiously applied, and the service must be so far outside of the sphere of the employment as to indicate a ^probable- intention on the part of the master to allow extra compensation therefor. If the question be one of doubt, the right to extra compensation should rest only upon an express agreement. Any other rule of law would introduce dangerous uncertainty and instability into all contracts of service. Even the domestic in your household would charge you with a judgment for compensation for extra service if some further work were required of her than the mistress thought to mention at the hiring. In the case at bar no special qualification was necessary for the extra work required. Plaintiff’s experience in running engines upon this road in part qualified him for. the. service in which he was then engaged. The running of this engine at special times was part of the service explicitly contracted for. ■ An. enlarge
, But granting, for the argument, that the running of this switch engine was outside of the sphere or scope of his employment, as held by the referee, I am still of the opinion that the judgment is not justified. Even then the surrounding circumstances may indicate an intention to make the additional service a part of the service for which the wages named in the original contract should compensate. The plaintiff was employed by the month and paid by the month. The defendant has the clear right to discharge him at the end of any month. The defendant might change the nature of that employment, and radically, if it chose. After the expiration of the first month at least the contract must be deemed to include all service required, whether or not it be additional to the service specified upon the'original hiring. That this service was intended to be a part of his regular duties for which he was receiving his compensation is to my mind clearly indicated by the very order directing the service. The order reads: “ They will run their regular engines to do the work, but in case you are called on to do some switching you will use engine 61, and you will have to run her.” That it was so understood by the plaintiff, as well as the defendant, is clearly indicated by the fact that no claim whatever was made for this extra service for over sixteen months and until plaintiff left the employ of the defendant, and this while receiving monthly his wages from defendant. The case of Smith v. Long Island Railroad Company (102 N. Y. 190) does not authorize the conclusion of the referee.. In that case plaintiff was not. in the employ of the defendant, and the performance of service, at the request of the defendant, was held to imply a promise to repay and not to be presumptively gratuitous. No express agreement for extra compensation is claimed, and I can see no facts from which an implied agreement can be deduced. The law is well settled that for extra hours of service required by the master no extra compen
All a incurred.
Judgment reversed on law and facts, referee discharged, a,nd new trial granted^ with costs to appellant to abide event.