Stoike v. First Nat. Bank of New York

• Decision Date: 15 April 1943
• Citation: 48 N.E.2d 482,290 N.Y. 195
• Parties: STOIKE v. FIRST NAT. BANK OF CITY OF NEW YORK.
• Court: New York Court of Appeals Court of Appeals

290 N.Y. 195

48 N.E.2d 482

STOIKE

v.FIRST NAT. BANK OF CITY OF NEW YORK.

Court of Appeals of New York.

April 15, 1943.

Appeal from Supreme Court, Appellate Division, First Department.

Submission on an agreed statement of facts, pursuant to Civil Practice Act, ss 546-548, of controversy between Arthur H. Stoike and First National Bank of the City of New York as to plaintiff's right to overtime compensation under the Fair Labor Standards Act of 1938, 29 U.S.C.A. s 201 et seq. From a judgment of the Appellate Division of the Supreme Court, 264 App.Div. 585, 36 N.Y.S.2d 390, entered July 21, 1942, in favor of plaintiff, the defendant appeals by permission of the Appellate Division 265 App.Div. 813, 37 N.Y.S.2d 832.

Judgment of Appellate Division reversed and judgment directed in favor of defendant.

LOUGHRAN, J., dissenting. Lowell Wadmond and Oliver P. Scaife, III, both of New York City, for appellant.

Robert S. Garson, of New York City, for respondent.

LEWIS, Judge.

The plaintiff-respondent has thus far been successful in the prosecution of a claim against his employer, the appellant bank, for overtime compensation which he asserts is due him under the maximum hours provision of the Fair Labor Standards Act. June 25, 1938, 52 Stat. 1060, ch. 676, 29 U.S.C.A. s 201 et seq.

The case comes to us on an agreed statement of facts, Civil Practice Act, s 546, from which it appears that the plaintiff was employed by the defendant bank on November 29, 1937, as a night porter, his duties being to clean portions of the defendant's twenty-one story building at No. 2 Wall Street in the city of New York. Of the twenty-one stories the first four, two mezzanines and two basements were occupied by the defendant as banking quarters, the upper seventeen stories being rented to tenants. It was incumbent upon the defendant's building superintendent to arrange each night for the cleaning of the entire building from top floor to basement. To that end there were employed eleven porters who cleaned first the defendant's banking quarters and then the upper floors occupied by tenants. The plaintiff was in the appellant's employ from November 29, 1937 until he voluntarily left on April 15, 1939. In the early period of his employment both before and after the effective date of the Fair Labor Standards Act the plaintiff did considerable work in the defendant's banking quarters, dusting and cleaning tables, chairs and office furniture or scrubbing floors and stairs. During the later period of his employment he spent the greater portion of his working hours cleaning public corridors and washrooms on the upper floors.

The Fair Labor Standards Act is a comprehensive legislative scheme designed by Congress to prevent the shipment in interstate commerce of commodities produced in the United States under labor conditions which, as respects wages and hours, fail to conform to standards set up by the Act. It prescribes a 44-hour week. The plaintiff received a weekly wage of $27, or an average of 56 1/4 cents an hour figured on the basis of a 48-hour week. Subsequent to the effective date of the Act and during fifteen out of twenty-five weeks after the Act became effecive, the plaintiff worked fortyeight hours a week. He claims to be entitled to overtime compensation in the amount of $50.63, plus a like amount as liquidated damages and reasonable attorney's fees and costs.

The defendant resists the demand asserting that upon the agreed facts the Fair Labor Standards Act is inapplicable to the plaintiff's claim and asks for its dismissal. The plaintiff has been awarded judgment at the Appellate Division (unanimous) in the amount claimed for overtime compensation plus liquidated damages. The present appeal is by leave of the Appellate Division, upon the ground that a question of law is involved which merits review by this court.

The Fair Labor Standards Act, s 7 (subd. a) provides in part: ‘No employer shall, except as otherwise provided in this section, employ any of his employees who is engaged in commerce or in the production of goods for commerce (1) for a workweek longer than forty-four hours during the first year from the effective date of this section, * * * unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed.’

There seems to be no question that the federal statute casts upon the plaintiff the burden of proving that in the performance of work for which he was employed by the defendant he was engaged in interstate commerce or in the production of goods for interstate commerce during the period of asserted overtime and employment. Warren-Bradshaw Drilling Co. v. Hall, 317 U.S. 88, 63 S.Ct. 125, 87 L.Ed. .

In the argument before us counsel for the plaintiff conceded that dusing and cleaning, as performed under ordinary circumstances, do not constitute interstate commerce. But it is said that when, as in the present case, the functions of dusting and cleaning are performed by one as an employee of a bank, the business of which in part is interstate commerce, the employee is engaged in interstate commerce. The plaintiff's argument is that his labors served to facilitate work performed in the defendant's private banking quarters where commerce starts where specie and currency are shipped to points outside the State, where credit is entered and where those other services are rendered which are within that wide range of transactions common to commercial banking.

The defendant, for the purpose of the argument only, concedes that at least a part of the banking services performed in its banking quarters constitute interstate commerce. It contends, however, and the Appellate Division has recognized that this ‘* * * is not a case where the employee was in anywise engaged in the production of goods for commerce.’ 264 App.Div. 585, 586, 36 N.Y.S.2d 390, 391. Accordingly the defendant's argument goes to the narrow question whether the plaintiff at the time of his overtime employment, was ‘engaged in’ interstate commerce within the intended meaning of section 7 (subd. a) of the Act.

In support of its position we are told by the defendant that, even upon the assumption that its banking business is interstate commerce, the plaintiff has failed upon the record before us to show that the character of his work of cleaning and dustingbore such a relation to the defendant's banking activities as to justify a finding that plaintiff's activities themselves constituted interstate commerce. In other words the defendant, as the employer, does not stress the nature of its business. Rather does it place emphasis upon the character of work done by the plaintiff as its employee thus conforming with the rule that ‘* * * the provisions of the Act expressly make its application dependent upon the character of the employees' activities.’ Kirschbaum Co. v. Walling, 316 U.S. 517, 524, 62 S.Ct. 1116, 1120, 86 L.Ed. 1638.

In reaching a decision favorable to the plaintiff the Appellate Division recognized the fact that Congress had defined certain words and phrases as used in the Act. The statute provides, s 3, subd. (j), that For the purpose of this Act an employee shall be deemed to have been engaged in the production of goods if such employee was employed in producing, manufacturing, mining, handling, transporting, or in any other manner working on such goods, or in any process or occupation necessary to the production thereof, in any State.' (Emphasis supplied.) But the definition of ‘commerce’ (s 3, subd. b), as that word is used in the Act, is not so broad in scope: “Commerce' means trade, commerce, transportation, transmission, or communication among the several States or from any State to any place outside thereof.' The Appellate Division determined that there is no substantial distinction between the two categories of employment described by those statutory definitions and ruled that Congress did not intend to differentiate between the two types of employment thus defined. In other words, in construing section 7 (subd. a) of the Act, the Appellate Division seems to have combined the two definitions, quoted above, by transposing the word ‘necessary’ from its context...