| N.Y. App. Div. | Dec 22, 1947
Plaintiff seeks to recover overtime compensation, liquidated damages and reasonable attorney’s fees pursuant to the provisions of the Pair Labor Standards Act of 1938 (U. S. Code, tit. 29, § 201 et seq.). Before an employee may recover under the overtime provisions of the act, he must establish, among other things, that during a given work week he actually devoted in excess of forty hours of compensable working time to the business of his employer. (Walling v. Sun Pub. Co., 47 F. Supp. 180" date_filed="1942-09-29" court="W.D. Tenn." case_name="Walling v. Sun Pub. Co.">47 F. Supp. 180, affd. sub nom. Sun Pub. Co. v. Walling, 140 F.2d 445" date_filed="1944-01-24" court="6th Cir." case_name="Sun Pub. Co. v. Walling">140 F. 2d 445, certiorari denied 322 U.S. 728" date_filed="1944-04-24" court="SCOTUS" case_name="Thompson v. Farmers Bank">322 U. S. 728; Tennessee Coal, Iron & R. R. Co. v. Muscoda Local, 321 U.S. 590" date_filed="1944-05-29" court="SCOTUS" case_name="Tennessee Coal, Iron & Railroad v. Muscoda Local No. 123">321 U. S. 590.)
The complaint in this case merely alleges that “ defendants employed the plaintiff for work weeks in excess of forty hours While plaintiff may have been engaged to work more than forty hours per week it does not follow that he actually did work in excess of forty hours during any work week. Unless he actually did so he would not be entitled to the overtime compensation or other benefits provided by the law. The order appealed from should therefore be reversed, with $20 costs and disbursements to the appellants and the motion to dismiss the complaint granted, with leave to the respondent to serve an amended complaint within ten days after service of a copy of the order to be entered herein, on payment of said costs.
Peck, P. J., Gleítnoe, Cohk, Vast Vooehis and Shleetag, JJ., concur.
Order unanimously reversed, with $20 costs and disbursements to the appellants and the motion to dismiss the complaint granted, with leave to the plaintiff-respondent to serve an amended complaint within ten days after service of the order with notice of entry, on payment of said costs.