#### John R. Gray, Respondent, *v.*Charles W. Hall, Appellant.

(Supreme Court, Appellate Term,

November, 1900.)

Master and servant — Employee, hired by the day, cannot, under the eight-hour law, recover for overtime.

An employee, hired by the day, cannot, under the acts constituting eight hours a legal day’s work, recover for overtime unless the contract of employment contains a stipulation to that effect.

A contract for work at five dollars a day “ and proportionately thereto for parts of a day ”, contains no stipulation for compensation for overtime, as the words quoted merely fix the rate of compensation where the employee has worked only a part of a day.

Appeal from a judgment of the Municipal Court of the city of New York, borough of Manhattan. Action for 313 hours of work, overtime.

*684L. Skidmore, for appellant.

H. E. Mooney, for respondent.

*Per Curiam.*

The plaintiff was employed by the defendant as foreman of masons. His employment was by a -letter written by the defendant in which, after stating the duties to be performed, he wrote as follows respecting.the plaintiff’s compensation: “It is understood that you are to receive five dollars per day for each day that you work and proportionately thereto for parts of a day.”

The plaintiff commenced work on January 27, 1899, and continued until September 2, 1899, when he was discharged. He was paid at the rate of five dollars per day until April 1, 1899. He then complained of the length of time that he was required to work daily, and his pay was increased to six dollars a day. About June 24, 1899, he again complained of his hours of work, and his pay was raised to seven dollars a day, at which rate he was paid until his discharge. There is some dispute in the evidence as to whether these increases of pay were granted in terms as compensation for overtime work, but at any rate they coincided very nearly as to time with the complaints of the length of time that plaintiff was compelled to work. During the whole time of his employment the plaintiff never made any claim for additional payment for overtime, but accepted his agreed daily pay. After his discharge, however, he made a demand for extra payment for three hundred and thirteen hours of overtime. He relies upon the provision of chapter 385, Laws of 1870, by the first section of which it is enacted as follows: “ On and after the passage of this act, eight hours shall- constitute a legal day’s work for all classes of mechanics, workingmen and laborers, excepting those engaged in farm and domestic labor; but overwork for an extra compensation by agreement between employer and employee is hereby permitted.” This provision, which has been re-enacted by chapter 415, Laws of 1897, and chapter 567, Laws of 1899, has been construed by the Court of Appeals. McCarthy v. Mayor, 96 N. Y. 1. It was there held that an. employer was not made liable under the act, to an employee hired by the day, for labor beyond the statutory time, unless it was provided for in the contract of employment, and that, in the absence of any stipulation for extra compensation in the contract of employment, the language of the act furnished no ground *685for the inference that it intended to confer a right upon, an employee to charge for more than one day’s labor for services rendered in any calendar day, and that for such services the employee could not recover extra compensation. Unless, therefore, the contract under which the plaintiff was employed contains, by fair and reasonable construction, a stipulation for extra pay for overtime, this judgment must be reversed. The language of the contract was “you are to receive five dollars per day for each day that you work, and proportionately thereto for parts of a day.” The justice before whom the action was tried evidently construed the words proportionately thereto for parts of a day ” as applicable to overtime. They will, however, bear no such construction. They refer evidently not to something more than a day, but to something less, that is, to a part of a whole day. What the letter clearly meant was that the plaintiff was to be paid so much for a whole day, and that if he worked only part of a day he was to receive such part or proportion of his day’s wage as the time he worked bore to a whole day. The intention was that, under certain circumstances, the plaintiff might receive less than five dollars per day, but there is no promise that he shall in any event be paid more. The judgment must be reversed, and a new trial granted, with costs to the appellant to abide the event.

Present: Truax, P. J.; Scott and Dugro, JJ.

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