
    Rocco Aufiero, Respondent, v. E. A. Laboratories, Inc., Appellant.
   Plaintiff, a night watchman, obtained a verdict for unpaid overtime compensation, liquidated damages and counsel fees under the Fair Labor Standards Act of 1938 (U. S. Code, tit. 29, § 201 et seq.). Defendant appeals from the judgment entered on the verdict and from an order denying its motion to set aside the verdict and for a new trial. Judgment reversed on the law and the facts and a new trial granted, with costs to appellant to abide the event. Appeal from order dismissed, without costs. The amount of the verdict cannot be justified by the proof in this record. The evidence as to plaintiff’s sleeping during the interval between 10:00 p.m. and 5:00 a.m. was so inconclusive that it should have been disregarded. The amount of the verdict was based on a calculation as to a number of hours worked which was obviously a compromise. It took into consideration a deduction for sleeping hours which was based on pure speculation. Since this cause is to be retried, we deem it proper to express our opinion, despite the fact that' there was no exception to the charge of the court that sleeping time was to be deducted from working time, that sleeping time, as a matter of law, is not to be deducted from working time under the circumstances of this case. Hagarty, Acting P. J., Carswell, Johnston, Adel and Nolan, JJ., concur.  