
    Richard Searl, Respondent, v. The American Tobacco Co., Appellant.
    (City Court of New York
    —General Term,
    April, 1895.)
    A count in a complaint alleging that plaintiff was requested by the defendant to do certain extra work in addition to that for which, by the terms of the contract, he was regularly employed, is not demurrable on the ground of an implication that such work was embraced within and compensated by the original employment, as it is competent for an employer to make a contract with his employee for extra work, and in such case the implication does not apply.
    Appeal by the defendant from an interlocutory judgment overruling the demurrer to the plaintiff’s first cause of action.
    
      E. G. Bullard, for appellant.
    
      Btiefél & Lamer, for respondent.
   Ehrlich, Oh. J.

The complaint alleges an employment of the plaintiff by the defendant as assistant bookkeeper, “ his duties to consist of checking hills and orders, making entries from the sales book into the journal, taking off a trial balance, and doing a general office work as an assistant bookkeeper; ” that thereafter, and about February 1,1894, while plaintiff was employed by defendant and was attending to his duties as assistant bookkeeper, he was requested by defendant to do certain extra worlc in addition to that for which, by the terms of the contract above mentioned, he was regularly employed.” The value of this extra work is alleged to be $280.

The defendant demurs to the count for extra work upon the ground that the implication is that it was embraced in and compensated by the original employment.

The argument of the defendant is a very plausible one, and is apparently sustained by many authorities.

But the difficulty is that the allegation of the complaint, that the plaintiff “ was requested by the defendant to do certain extra worlc in addition to that for which, by the terms of the contract, he was regularly employed,” is admitted by the demurrer.

It was quite competent for the defendant to make a contract for extra work, and, for all that appears to the contrary, the parties in this case did make an express contract to that effect.

If such be the case the implications which the defendant invoked are of no moment.

We think that instead of demurring, thereby admitting that the plaintiff had been requested by the defendant to do certain “ extra work,” defendant should have denied that fact, thus creating an issue; and if upon the trial it appeared, as it perhaps might, that there was no such contract for extra work, then appellant’s authorities might have great weight, because applicable to the state of facts adduced.

For these reasons we think the demurrer was properly overruled.

The interlocutory judgment must, therefore, be affirmed, with costs.

Van Wyck, J., concurs.

Interlocutory judgment affirmed, with costs.  