
    CAMIANO et al. v. RIFKIN.
    District Court, S. D. New York.
    March 11, 1948.
    Samuel Kaufman, of New York City, for plaintiffs.
    Held & Held, Joseph G. Telchin and Philip D. Held, all of New York City, for defendant.
   BONDY, District Judge.

This is an action to recover unpaid overtime compensation and liquidated damages pursuant to Section 16(b) of the Fair Labor Standards Act, 29 U.S.C.A. § 216 (b). Plaintiffs .are employed by defendant in connection with its business of providing transportation services and facilities in connection with the garment industry.

The pleadings, depositions and affidavits present genuine questions of fact as to the character of plaintiffs’ duties and extent of plaintiffs’ activities. Only by the trial can it be determined whether any of plaintiffs’ duties and activities in defendant’s business affect safety of operation of motor vehicles in such manner as to subject plaintiffs to the jurisdiction of the Interstate Commerce Commission under Section 204(a) of the Motor Carrier Act of 1935, 49 U.S.C.A. § 304(a), and to exclude them from any benefits of Section 7 by Section 13(b) of the Fair Labor Standards Act of .1938, 29 U.S.C.A. §§ 207, 213(b). United States v. American Trucking Ass’ns, 310 U.S. 534, 60 S.Ct. 1059, 84 L.Ed. 1345; Levinson v. Spector Motor Co., 330 U.S. 649, 67 S.Ct. 931; Pyramid Motor Freight Corporation v. Ispass, 330 U.S. 695, 67 S.Ct. 954; Morris v. McComb, 332 U.S. 422, 68 S.Ct. 131; Walling v. Comet Carriers, 2 Cir., 151 F.2d 107, certiorari dismissed 328 U.S. 819, 66 S.Ct. 1007, 90 L.Ed. 1600.

Defendant’s defenses under Sections 9 and 11 of the Portal-to-Portal Act of 1947, 29 U.S.C.A. §§ 258, 260, must be tried since his good faith has been made a question of fact by the affidavits.

Plaintiffs are not barred from obtaining relief because they did not make or can not produce accurate records of time worked by them. Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687, 66 S.Ct. 1187, 90 L.Ed. 1515.

Defendant’s motion for summary judgment accordingly must be denied.  