App. Div.]

Fourth Department, February, 1910.

EARL LANGMADE, Respondent, v. OLEAN BREWING COMPANY,

Appellant.

Fourth Department, February 2, 1910.*

Master and servant extra work-facts not justifying recovery.

Action by a servant against his master to recover compensation for extra work. It appeared that the plaintiff, while receipting for a weekly wage, kept account of overtime work, but that the master had repudiated any liability therefor at various times during the period of the employment. On all the evidence, held, that a judgment for the plaintiff should be reversed as against the weight of the evidence.

APPEAL by the defendant, the Olean Brewing Company, from a judgment of the County Court of Cattaraugus county, entered in the office of the clerk of said county on the 24th day of May, 1909, pursuant to an order of said County Court dated the 10th day of May, 1909, and entered in said clerk's office, affirming a judgment of a justice of the peace of the city of Olean in favor of the plaintiff.

M. B. Jewell, for the appellant.

Dana L. Jewell, for the respondent.

SPRING, J.:

The defendant is a corporation carrying on a brewery in the city of Olean, and in the year 1908 the plaintiff was in its employ as a teamster. When he began work in April of that year he drove his own horse and received two dollars and fifty cents per day. He testified that during this employment an arrangement was made between him and the president and secretary of the defendant to the effect that when horses of its own were used in the business and he became a member of the Olean branch of the International Union of United Brewery Workmen of America the defendant's contract with that organization would regulate the compensation of the plaintiff.

*No other opinions were handed down in this department during February, 1910.- [REP.

Fourth Department, February, 1910.

[Vol. 137

It appears that a written agreement had been entered into by the union and the defendant to become operative on the 1st of March, 1908, by which the defendant agreed to employ "only members in good standing" in said Olean branch, and was to pay beer drivers fifteen dollars a week and for overtime, nine hours a day, "to be paid at the rate of time and a half.”

In the month of May the plaintiff became a member of the Olean branch of this union and about the middle of June he commenced driving on a beer wagon a horse of the defendant, and continued in that employment until he was laid off in January following for the reason that the business of the defendant did not justify his retention.

He was paid fifteen dollars each week for his services, signing a receipt therefor upon each payment, and if nothing else appeared there would not be much basis for the claim of the plaintiff.

The evidence shows that he worked overtime and he testified that he kept close track of this extra work day by day and presented an itemized statement upon the trial, showing that it amounted during the year to 251 hours, and he has commenced this action to recover for such overtime services. He testified that at several times he made claims to the officers of the defendant for compensation for this extra work as stipulated in the agreement referred to with the union. He testified also that he first made a charge for overtime to Mr. Homer, the secretary, and the latter said to him, "Now, he says, we will have to bring that about. I don't keep the time; Habberstrumpf keeps the time. I says, the contract calls for overtime and the contract was to take effect when I commenced to drive your rigs and I think I am entitled to what the contract calls for. Q. What did he say? A. He said he would have to see. He didn't keep the time." He also made a like claim to Mr. Habberstrumpf, who was the brewmaster of the defendant and kept the time of the men, but Habberstrumpf did not recognize the claim, telling the plaintiff if he was not satisfied with the fifteen dollars a week he would give him a job in the bottling works.

Mr. Sigel, the president, Mr. Homer, the secretary, and the brewmaster deny specifically that there was any promise ever given to the plaintiff to pay him more than fifteen dollars per week. The president testified that the beer drivers employed by a rival

App. Div.]

Fourth Department, February, 1910.

brewery in the city received only twelve dollars per week, and that company had also signed an agreement with the union of like import to the one entered into by the defendant. Further, that the defendant was willing to employ the plaintiff in the bottling works, but would not pay him more than fifteen dollars per week as teamster and nothing for overtime. The secretary and Habberstrumpf agree substantially with Sigel, the president. They were all present once or twice when the subject was discussed with the plaintiff and at other times when the president was not present, and the effect of their testimony is that the claim was repudiated whenever considered. The secretary testified also that he told the plaintiff whenever the subject came up that if he did not wish to work for fifteen dollars per week he could quit, and notwithstanding this statement the plaintiff kept on working and signing the receipts. The president testified that he said to the plaintiff if he continued to work "it will be with the distinct understanding there will be no overtime due him. He got up and went out," and nothing further was said on the subject until after the employment was terminated in January. These witnesses are strongly supported by the fact that during all the time of the service of the plaintiff he accepted the fifteen dollars per week, signing vouchers for the same, and no action was taken by him to collect for overtime until he was discharged by the defendant. Such a course is unusual and, ordinarily, would suffice to defeat his claim. (McCarthy v. Mayor, etc., 96 N. Y. 1.)

Again, the plaintiff testified on his recross-examination that after he was laid off in January he spoke to Mr. Sigel on the subject, saying "it looked funny my being laid off, the oldest driver, after putting in overtime all summer;" indicating that he was not expecting pay for such overtime. The putting in of extra time would be no inducement for his continued employment when business was dull, if he was to be paid for that extra time.

It is probably true that the contract entered into by the defendant with the union can be read into the agreement with the plaintiff. (Keysaw v. Dotterweich Brewing Co., 121 App. Div. 58.)

The existence of that agreement, however, did not prevent the parties to this action from regulating the compensation to be paid to the plaintiff. They could make an independent agreement disregarding the one with the union, and they did that, if we are to

Fourth Department, March, 1910.

[Vol. 137.

give credence to the great preponderance of the testimony. I think the judgment is against the weight of the evidence, and for that reason should be reversed.

The judgment of the County Court and of the Justice's Court should be reversed, with costs to appellant in this court and in the courts below.

All concurred.

Judgment of County Court and judgment of Justice's Court reversed, with costs in all courts to appellant.

THE PEOPLE OF THE STATE OF NEW YORK ex rel. BUFFALO GAS COMPANY, Appellant, v. THE STATE BOARD OF TAX COMMISSIONERS, Respondent, Impleaded with the CITY OF BUFFALO

The return to a writ of certiorari to review the assessment of a franchise tax should put the court in possession of all the material facts which induced the Board of Tax Commissioners to make the assessment, otherwise the court cannot intelligently pass upon its propriety or validity.

A return merely stating that the Board did not limit itself to any one fixed rule or method of determining the value of the special franchise, but in arriving thereat applied the test of the so-called net earnings rule and of the so-called stock and bond theory so far as applicable to the facts and circumstances, and in the light of these tests and of all other circumstances affecting the value of the intangible property which were before it, exercised its best judgment as to the value thereof states mere conclusions and not a single fact or circumstance which will enable the court to determine whether the assessment be legal. Hence, a second and further return will be ordered.

SPRING and KRUSE, JJ., dissented, with opinion.

APPEAL by the relator, the Buffalo Gas Company, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 24th day of November, 1909, denying the relator's motion for a further return to a writ of certiorari theretofore issued herein.

The proceeding was commenced on the 2d day of March, 1909,

App. Div.]

Fourth Department, March, 1910.

by the granting of a writ of certiorari directed to the members of the State Board of Tax Commissioners and to said Board, commanding them, in substance, to make return of their proceedings in the premises to the end that the assessment made against the property of the relator might be reviewed.

On the 11th day of June, 1909, the Attorney-General, for and on behalf of the Board, served a return to such writ. On June 14, 1909, an order was duly made, upon the stipulation of the parties, changing the place of trial from Albany county to Erie county, Thereafter and on November 1, 1909, an amended return was served. The relator thereupon made a motion for a further amended return, which motion was denied, and from the order denying such motion this appeal is taken.

Louis L. Babcock, for the appellant.

Edward R. O'Malley, Attorney-General [Percy S. Lansdowne, of counsel], for the respondent the State Board of Tax Commissioners.

George E. Pierce and Clark H. Hammond, for the respondent City of Buffalo.

MCLENNAN, P. J. :

The relator claims to be aggrieved because the State Board of Tax Commissioners fixed the value of its special franchise in the city of Buffalo at $2,000,000. It is claimed that such valuation is illegal, largely excessive and unequal as compared with the valuation placed upon other real estate in the city of Buffalo. It is unnecessary to specify in detail the many grounds set forth in the petition which it is claimed make the assessment and valuation in question invalid, because upon this appeal this court has not the power to determine or pass upon the validity of the claims so set forth.

The only question here presented is: Was the return or returns made by the State Board of Tax Commissioners to the writ of certiorari granted herein a compliance with the provisions of section 252 of the Tax Law (Gen. Laws, chap. 24 [Laws of 1896, chap. 908], § 252; revised in Consol. Laws, chap. 60 [Laws of 1909, chap. 62], § 292) as interpreted by the courts of this State and a compliance with the requirements of the writ?