
    Earl Langmade, Respondent, v. Olean Brewing Company, Appellant.
    Fourth Department,
    February 2, 1910.
    
    Master and servant — extra work — facts not justifying recovery.
    Action by a servant against his master to recover compensation for extra work. It appeared that the plaintiff, while receipting for a weekly wage, kept account of overtime work, but that the master had repudiated any liability therefor at various times during the period of the employment. On all the evidence, held, that a judgment for the plaintiff should he reversed as against the weight of the evidence.
    Appeal by the defendant, the Clean Brewing Company, from a judgment of the County Court of Cattaraugus county, entered in the office of the clerk of said county on the 24th day of May, 1909, pursuant to an order of said County Court dated the 10th day of May, 1909, and entered in said clerk’s office, affirming a judgment of a justice of the peace of the city of Clean in favor of the plaintiff.
    
      M. B. Jewell, for the appellant.
    
      Dana L. Jewell, for the respondent.
    
      
       No other opinions were handed down in this department during February, 1910.— [Rep.
    
   Spring, J.:

The defendant is a corporation carrying on a brewery in the city of Clean, and in the year 1908 the plaintiff was in its employ as a teamster. When he began work in April of that year he drove his own horse and received two dollars and fifty cents per day. He testified that during this employment an arrangement was' made between him and the president and secretary of' the defendant to the effect that when horses of its own were used in the business and he became a member of the Clean branch of the International Union of. United Brewery Workmen of America the defendant’s contract with that organization would regulate the compensation of the plaintiff.

■ It appears that a written agreement, had been entered into by the union and the defendant to become operative on the 1st of March, 1908, by which the defendant agreed - to employ “only members in good standing ” in said Olean branch, and was to pay-beer drivers fifteen dollars' a week and for overtime, nine hours a day, “ to be paid at the rate of time and a half.”

In the month of May the plaintiff became a member of the Olean branch of'this union and about the middle of June he commenced driving on a beer wagon a hqrse. of the defendant, and continued, in that: employment until he was laid off in January following ■ for the reason that the business- of the defendant did not justify his retention.

. TELe, was paid fifteen dollars each week for his services, signing a Receipt therefor upon each payment, and if nothing else appeared there would not be much basis for the claim of the plaintiff.

■ The evidence shows that he worked overtime and he. testified that he kept close track, of this extra work day by day and presented an itemized statement upon the trial, showing ihat it amounted during the year to 251 hours, and he has. commenced this action to recover for such' overtime services. He- testified that at several times he made claims to the officers of the- defendant; for compensation for this extra work as stipulated in the agreement referred -to with the union. He testified. also that lie first made a charge for overtime to Mr. Homer* the secretary, and the latter said to him, “ How,, he says, we' will have to bring that about. I don’t keep the time; H'abberstrumpf keeps the time, I says, the contract calls for overtime and the contract was to take effect when I commenced to drive your rigs and I think I am. entitled to what the contract calls for. Q, What did he say % A. He said he would have to see. He didn’t keep the time.” He also made a like claim to Mi'- Habberstrumpf, who was.the brewmaster of the defendant and kept the timé of the men, but Habberstruinpf did not recognize the claim, telling the plaintiff if he was not satisfied with the- fifteen dollars a week he would give him a job in the bottling works.

Mr. Sigel, the president, Mr. Homer, the secretary, and the brew-master deny specifically that there was any promise ever given to the plaintiff to pay him more than fifteen dollars per week. The president testified that the beer drivers employed by ■ a rival brewery in the city received only twelve dollars per week, and that company had also signed an agreement with the union of like import to the one entered into by the defendant. Further, that the defendant was willing to employ the plaintiff in the bottling works, but would not pay him more than fifteen dollars per week as teamster and nothing for overtime. The secretary and Habberstrumpf agree substantially with Sigel, the president. They were all present once or twice when the subject was discussed with the plaintiff and at other times when the president was not present, and the-effect of their testimony ié that the claim was repudiated whenever considered. The secretary testified also that he told the plaintiff whenever the subject came up that if he did not wish to work for fifteen dollars per week he could quit, and notwithstanding this statement the plaintiff kept on working and signing the receipts. The president testified that he said to the plaintiff if he continued to work it will be with the distinct understanding there will be no overtime due him. He got up and went out,” and nothing further was said on the subject until after the employment was terminated in January. These witnesses are strongly supported by the fact that during all the time of the service of the plaintiff he accepted the fifteen dollars per week, signing vouchers for the same, and no action was taken by him to collect for overtime until he was discharged by the defendant. Such a course is unusual and, ordinarily, would suffice to defeat his claim. (McCarthy v. Mayor, etc., 96 N. Y. 1.)

Again, the plaintiff testified on liis recross-examination that after he was laid off in January he spoke to Mr. Sigel on the subjéct, saying “ it looked funny my being laid off, the oldest driver, after putting in overtime all summer;” indicating that he was not expecting pay for such overtime. The putting in of extra time would be no inducement for his continued employment when. business was dull, if he was to be paid for that extra time.

It is probably true that the contract entered into by the defendant with the union ean.be read into the agreement with the plaintiff. (Keysaw v. Dotterweich Brewing Co., 121 App. Div. 58.)

The existence of that agreement, however, did not prevent the parties to this action from regulating the compensation to be paid to the plaintiff. They could make an independent agreement disregarding the one with the union, and they did that, if we are to give credence to the great preponderance of the testimony. I think the judgment is against the weight of the evidence, and for that reason should be reversed.

The judgment of the County Court and of the Justice’s Court Should be reversed, with costs to appellant in this court and in the courts below.

All concurred.

Judgment of County Court and judgment of Justice’s Court reversed, with costs in all courts to appellant.  