Reck v. Zarnocay

Appellate Division of the Supreme Court of New York

Reck v. Zarnocay

264 A.D. 520, 36 N.Y.S.2d 394, 1942 N.Y. App. Div. LEXIS 4193

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJuly 3, 1942

StatusPublished

Cited by1 cases

This text of 264 A.D. 520 (Reck v. Zarnocay) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Reck v. Zarnocay, 264 A.D. 520, 36 N.Y.S.2d 394, 1942 N.Y. App. Div. LEXIS 4193 (N.Y. Ct. App. 1942).

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Opinion

Per Curiam.

We are constrained, in view of the nature of plaintiff’s duties and in light of the recent decisions on the subject, to hold that plaintiff was engaged in interstate commerce or the production of goods for interstate commerce within the meaning of the Fair Labor Standards Act of 1938 (52 U. S. Stat. at Large 1060; U. S. Code, tit. 29, §§ 201-219). See Kirschbaum Co. v. Walling and Arsenal Building Corp. v. Walling, 316 U. S. 517, both decided by the United States Supreme Court on June 1, 1942; and Stoike v. First National Bank, of City of New York, 264 App. Div. 585). However, an examination of the present record discloses no evidence to support the finding of the trial court that plaintiff was working under a contract of employment fixing forty-eight hours as the regular weekly employment. On the contrary, we find that the contract was for a weekly wage with variable or fluctuating hours. Therefore, the method of computing plaintiff’s overtime was to find the hourly rate by dividing the agreed weekly wage by the actual hours worked each week, then to increase by fifty per centum the hourly rate thus found, and to multiply that figure by the number of overtime hours. (Overnight Motor Transportation Co., Inc., v. Missel, 316 U. S. 572, decided by United States Supreme Court, June 8, 1942.)

The parties are hereby directed to compute plaintiff’s overtime wages on the foregoing basis, and to submit new findings in accordance with this opinion, and this judgment is modified to the amount computed according to the formula set forth above.

Present — Martin, P. J., Townley, Dore, Cohn and Callahan, JJ.

[522]*522Judgment unanimously modified in accordance with opinion, and as so modified affirmed, without costs. ' Settle order on notice, reversing findings inconsistent with this determination, and containing such new findings of fact proved upon the trial as are necessary to sustain the judgment hereby awarded.

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Per Curiam.

We are constrained, in view of the nature of plaintiff’s duties and in light of the recent decisions on the subject, to hold that plaintiff was engaged in interstate commerce or the production of goods for interstate commerce within the meaning of the Fair Labor Standards Act of 1938 (52 U. S. Stat. at Large 1060; U. S. Code, tit. 29, §§ 201-219). See Kirschbaum Co. v. Walling and Arsenal Building Corp. v. Walling, 316 U. S. 517, both decided by the United States Supreme Court on June 1, 1942; and Stoike v. First National Bank, of City of New York, 264 App. Div. 585). However, an examination of the present record discloses no evidence to support the finding of the trial court that plaintiff was working under a contract of employment fixing forty-eight hours as the regular weekly employment. On the contrary, we find that the contract was for a weekly wage with variable or fluctuating hours. Therefore, the method of computing plaintiff’s overtime was to find the hourly rate by dividing the agreed weekly wage by the actual hours worked each week, then to increase by fifty per centum the hourly rate thus found, and to multiply that figure by the number of overtime hours. (Overnight Motor Transportation Co., Inc., v. Missel, 316 U. S. 572, decided by United States Supreme Court, June 8, 1942.)

The parties are hereby directed to compute plaintiff’s overtime wages on the foregoing basis, and to submit new findings in accordance with this opinion, and this judgment is modified to the amount computed according to the formula set forth above.

Present — Martin, P. J., Townley, Dore, Cohn and Callahan, JJ.

[522]*522Judgment unanimously modified in accordance with opinion, and as so modified affirmed, without costs. ' Settle order on notice, reversing findings inconsistent with this determination, and containing such new findings of fact proved upon the trial as are necessary to sustain the judgment hereby awarded.

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Bluebook (online)

264 A.D. 520, 36 N.Y.S.2d 394, 1942 N.Y. App. Div. LEXIS 4193, Counsel Stack Legal Research, https://law.counselstack.com/opinion/reck-v-zarnocay-nyappdiv-1942.

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