
    Michael Murray, Respondent, v. John Griffiths & Son, Appellant.
    (Supreme Court, Appellate Term,
    October, 1905.)
    Master and servant — Services and compensation — Extra compensation— When no agreement therefor is implied.
    A mere direction to a servant, regularly employed at stipulated wages, to do something outside his employment which he does as a matter of course, is insufficient to imply an agreement to give him additional compensation therefor.
    Appeal by defendant from a judgment of the Municipal Oourt of the city of Hew York, eighth district, borough of Manhattan, in favor of the plaintiff.
    Eidlitz & Hulse, for appellant.
    James D. McClelland, for respondent.
   Fitzgerald, J.

Plaintiff was employed as watchman and to attend to boilers at night for a contractor who was engaged in the construction of a large building; his wages were at stipulated rates which varied at times by mutual agreement and, at no time during the entire period, was any claim made for extra services. After his discharge, he made a demand for additional compensation.

It appears that there was a small wooden structure upon the premises which was used as a sort of office in the daytime and was left open at night for the accommodation of such employees as might then be at work. The alleged extra services consisted of cleaning out this structure before leaving in the morning. Clearly no additional compensation was contemplated between the parties. “Where a stipulated remuneration has been agreed upon, the servant has no claim to additional remuneration on the mere ground of performance of additional services.” 20 Am. & Eng. Ency. of Law, 19. (2d. ed.)

To support such a claim as is here made, proof of some new agreement, upon a mutual understanding, is essential. A mere direction to a regularly employed servant to do something, which the latter does as matter of course, is not sufficient to imply such an agreement. To hold otherwise would be to require employers to have specifically enumerated and definitely catalogued, at the time of the hiring, every simple service the proposed employee might be called upon to perform, lest ingenuity could subsequently differentiate between services so as to create additional liabilities.

Scott and Bischoef, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  