Mabee v. White Plains Publishing Co.

271 A.D.2d 834

Opinion

Action to recover unpaid overtime compensation, an additional equal amount as liquidated damages, and an attorney’s fee, pursuant to subdivision (b) of section 16 of the Fair Labor Standards Act of 1938 (U. S. Code, tit. 29, § 216). Upon the appeal to this court the judgment in favor of plaintiffs was reversed and the complaint dismissed (267 App. Div. 284) on the ground that defendant was not engaged in interstate commerce within the meaning of the act. The Court of Appeals affirmed without opinion (293 N. Y. 781, motion for reargument denied 294 N. Y. 701). On writ of certiorari, the United States Supreme Court reversed the judgment and held that defendant was engaged in the production of goods for commerce, and remanded the cause to determine whether, the act is applicable to these plaintiffs because of the character of their work (327 U. S. 178). On reargument, the Court of Appeals reversed the judgment and remitted the case to this court for further proceedings not inconsistent with the opinion of the United States Supreme Court. (296 N. Y. 527.) We hold that the act is applicable to these plaintiffs, as employees of defendant. On the court’s motion, reargument is directed, to be limited, however, to the issue of plaintiffs’ damage, if any, and the extent thereof, and to the weight of evidence in relation thereto. Reargument to be had at the January, 1947, term, commencing January 6, 1947. Lewis, P. J., Hagarty, Carswell, Johnston and Adel, JJ., concur.