
    Paul Keysaw, Respondent, v. Dotterweich Brewing Company, Appellant.
    Fourth Department,
    July 9, 1907.
    Master and servant — extra work — proof of contract — damage — overpayments offset.
    When the complaint in an action to recover for overtime work alleges that the defendant-entered into a written contract with a union of which the plaintiff was a member, fixing the hours of labor, and that the plaintiff' entered into defendant’s employ, he may show ■ by parol evidence that, the defendant recognized that he was working under the terms of the written contract.
    When it appears that the plaintiff worked for the .defendant for two years the latter may show, under denials, that the plaintiff worked overtime and. allegations of payment, that during the second year the plaintiff, received full day’s pay on occasions when he had not worked the required number of hours to reduce the claim for overtime work during the first year.
    Appeal by the defendant, the Dotterweich Brewing Company, from a judgment of -the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Cattaraugus on the- 3d.day of August, 1906, upon the verdict of a jury, and also from an order entered in said clerk’s office on ,the 3d day of August, 1906; denying the defendant’s motion for a new trial made upon the minutes.
    
      P. S. Collins, for the appellant.
    
      M. B. Jewell, for the respondents
   Kruse, J.:

The action is brought to recover for overtime work of the plaintiff while in the defendant’s employ, at divers times during the years 1900 and 1901. The defendant contends that there ivas a variance between the proof and the allegations of the complaint respecting the contract. We think there was.no such variance as to make that objection tenable. It is true that the complaint alleged that written contracts were made between the deféndant and the local union, of which the plaintiff was a member, fixing the rate of wages at thirteen dollars a week for six days’ work of ten hours each day, with twenty-five cents per hour for overtime. But there is. the further allegation that he entered, into the employ of the defendant, and it was competent to show by parol that the defendant recognized the fact that the plaintiff was working for it under the terms of this" contract,; the parties thus adopting the contract made in form with the plaintiff’s union.

The defendant further contends that it was competent to show the time for which the plaintiff was ovei-paid during the second year, against the overtime worked by the plaintiff during the first year, and in this we agree with the defendant.

There were two contracts made in form between the defendant and.the local union, of which the plaintiff was a member,- one by its terms taking effect April 16, 1900, to continue in force until Hay 1, 1901, and the other taking effect Hay 1, 1901, to remain in effect until Hay 1, 1902. The plaintiff claimed and alleged in his complaint that it was agreed that ten hours should constitute a "day’s work for his kind of services for both the first and second years, but upon the production on the trial of the contract for the" second year it appeared that twelve hours constituted a day’s work for the class of workmen to which the plaintiff belonged. The plaintiff admitted upon the trial that if twelve hours ivere required to make a day’s work he had failed in many instances during the second year’s service to work a full day’s work for which he had received a full day’s pay, and the trial court thereupon ruled that the plaintiff was not entitled to recover anything for the second year,, the plaintiff admitting that lie had been paid-for all services excepting the overtime. The defendant, however, insisted that the time for which the plaintiff had been overpaid should have been allowed against the time for extra work during the first year’s services. The trial court, ref used • to adopt that view, or to submit any question arising out of the second year’s services, holding that it was not competent under the defendant’s answer, which is a general denial (except defendant’s incorporation), and allegations of settlement and payment.'

The inference is permissible from the plaintiff’s own testimony that the overtime was first to be applied to make up for' such time as he had worked less than the required hours to' make a day’s work. He testified in effect that he kept his time on a slip of paper for the month of Maythat he showed it to the superintendent and told him that he was not getting páy for overtime; that the superintendent ■ told him' to keep the . overtime, and that when dull times came he would get his pay the same as if he were at work, and if that was not done they would have to pay him the money for it. _ . ,

It. is true that this conversation seems to have taken place during the first year’s services, but as has already .been pointed out, the contract made between the parties was evidenced not only by the two writings made between the defendant and the local union, but included what took place between the-plaintiff and the defendant in adopting and supplementing the -same. We think the jury would have been well warranted in finding that the arrangement regarding the extra- work continued during the second year’s services, and extended over the entire period of service. .

Very likely the purpose of this testimony on the part of the plaintiff was to show that there was no waiver on his part to recover for the extra work, he -having been paid from time to time at. the rate of thirteen dollars a week without-making any demand for extra time, or intimating that he was entitled for extra work, save as had been stated, but the effect of the testimony could not be‘thus limited. - • ' -

We have reached the conclusion,that the, trial court erred in excluding the testimony showing what time- during the second year the plaintiff failed to work a full day’s work of twelve hours ‘ for which he had received a full day’s pay, and in refusing to permit the jury to consider such evidence in reduction or extinguishment; of the plaiiitiff’s*apparent claim for overtime work doné during .the first year.

The judgment and the order denying the motion for a new trial should, therefore, be reversed and a new trial ordered, with costs to the appellant- to abide the event. .

All concurred; Robson, J., in result only. ■

Judgment and order reversed and new trial ordered, with costs to the appellant to abide event.' ’  