Gerlach v. Freeport Machine Works, Inc.

268 A.D. 824, 49 N.Y.S.2d 321, 1944 N.Y. App. Div. LEXIS 3641

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 3, 1944
• Status: Published

Opinion

In an action under the Fair Labor Standards Act of 1938 (U. S. Code, tit. 29, §§ 201-219) to recover compensation for alleged overtime services, judgment of the County Court, Nassau County, entered on the verdict of a jury in favor of plaintiff, reversed on the facts and a new. trial ordered, costs to abide the event. The verdict, which imports a finding that plaintiff worked hours additional to those for which she was paid at agreed and lawful rates, is against the weight of the evidence. Inasmuch as a new trial is ordered, it should be .noted that the plaintiff has the burden of proving not only that she was engaged in interstate commerce or in the production of goods for interstate commerce, but that she was engaged in such activities during the periods of asserted overtime employment. (Stoike v. First National Bank, 290 N. Y. 195, 200.) Close, P. J., Carswell, Adel, Lewis and Aldrich, JJ., concur.