Grady v. City of New York

• Decision Date: 30 May 1905
• Citation: 74 N.E. 488,182 N.Y. 18
• Parties: GRADY v. CITY OF NEW YORK.
• Court: New York Court of Appeals Court of Appeals

182 N.Y. 18

74 N.E. 488

GRADY

v.CITY OF NEW YORK.

Court of Appeals of New York.

May 30, 1905.

Appeal from Supreme Court, Appellate Division, First Department.

Action by John Grady against the city of New York. From a judgment of the Appellate Division (91 N. Y. Supp. 1096,100 App. Div. 515) affirming a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Reversed.

John J. Delany, Corp. Counsel (Theodore Connoly and Terence Farley, of counsel), for appellant.

Maurice Deiches and Daniel J. Early, for respondent.

CULLEN, C. J.

The action was brought by the plaintiff, a foreman of a gang for repairing pipes, stopcocks, etc., in the bureau of the water supply of the city of New York, to recover compensation for overtime work rendered during six years prior to the commencement of the action. The learned trial judge submitted the case to the jury to determine as questions of fact whether the plaintiff rendered the services under the expectation of compensation, and whether there was an implied contract on the part of the defendant to pay for the same. These issues were decided by the jury in the plaintiff's favor, but, as the affirmance by the Appellate Division was not unanimous, the question of law is open in this court whether there was any evidence sufficient to justify the submission of issues to the jury, and whether the defendant's motion for a nonsuit should not have been granted. That is the substantial point presented on this appeal.

The plaintiff had been employed in this department of the city for a great number of years, having first gone to work in 1871 as a helper and laboring man, and was appointed foreman in 1872. In 1887 or 1888 his wages were fixed at $5 a day, and he was allowed in addition thereto $2.25 a day for the keep of a horse and wagon. He was in charge of what was known as the ‘emergency gang,’ whose principal duty was to repair any leaks or breaks that might occur in the water pipes in his district of the city. The regular hours of work were from 8 in the morning to 5 in the afternoon, but the plaintiff, as he testifies, was on duty for the whole 24 hours; that is to say, he was liable to be called at any time, day or night, to repair a break in the pipes or cut off the water from the broken main, for which purpose he would get together some of his gang, and attend the scene of the accident. It is for the time spent in such work after hours that the plaintiff claims pay, and this claim is based not on any express contract, but on the theory that the law implies a contract from the circumstances under which the services were rendered, or at least that the jury might so find. We think that the circumstances conclusively negative any such implication. While the statutes regulating the period of labor on public work fixed the standard of a day's work at eight hours, they authorized the employment for a greater time in case of emergency. The plaintiff's duties were largely of the emergency character, and his employment to discharge those duties, though involving at times work for more than eight hours a day, was entirely legal. The question is, what was the contract to be implied from the course of dealings between the parties as to his compensation for such services? Was he to get a fixed wage for eight hours work, and then additional pay for the various periods of overtime his duty might require, or was his compensation to cover all the work he might perform, regardless of how the period of labor might vary on different days? Either method of compensation was proper and legal. To determine which was actually adopted it is...