
    Harry E. Van Fleet, Appellant, v Auburn Foundry, Inc., et al., Respondents.
   Appeal from a judgment of the Supreme Court in favor of defendant, entered January 21, 1977 in Tompkins County, upon a dismissal of the complaint by the court at a Trial Term at the close of all of the evidence. We cannot agree with the trial court’s conclusion that plaintiff has failed to prove a prima facie case. The standard to be applied allows dismissal only if the jury by no rational process could have returned a verdict in favor of plaintiff based on the evidence presented (Blum v Fresh Grown Preserve Corp., 292 NY 241). While the evidence supports the defendants’ position that it paid its employees from the hour or the half hour, the evidence also supports plaintiffs contention that pay was wrongfully withheld for certain half-hour blocks. Relevant here is plaintiffs testimony that in response to plaintiffs claim that he was being shortchanged, defendant Spagnola told him the underpayment would be made up to him in his next pay check. Plaintiff also testified that he would ask at the end of the work day (in accordance with company rules) what time he should start work in the morning when he worked overtime. This could support an inference that plaintiff was authorized to punch in when he did so. Further, defendant Spagnola admitted paying plaintiff for 15 minutes work when the records show 20, 25 or 30 minutes in excess of defendants’ claimed starting time. Defendant Spagnola testified that payment of the additional amount was made "out of the goodness of our hearts”. Since this practice contravened company policy as enunciated by defendants’ witness, the evidence raised an issue of fact concerning the exact amount plaintiff should have received. This was for the jury to decide. Judgment reversed, on the law, without costs, and a new trial ordered. Greenblott, J. P., Kane, Main, Larkin and Mikoll, JJ., concur.  