Opinion
Argued April 14, 1944
Decided June 14, 1944
Appeal from the Supreme Court, Appellate Division, Third Department, FOSTER, J.
Charles E. Nichols and Henry E. Foley of the Massachusetts Bar, for appellant. William E.J. Connor for respondent.
This action was brought under section 16-b of the Fair Labor Standards Act (52 Stat. 1060; U.S. Code, tit. 29, § 201 et seq.) by employees against their employer to recover overtime compensation plus an equivalent amount as liquidated damages. The question was whether at the time in issue the plaintiffs were "engaged in commerce" in the sense of that phrase as used in sections 6 and 7 of the Act. (See Stoike v. First National Bank, 290 N.Y. 195.)
Special Term dismissed the complaint ( 173 Misc. 188) and its judgment was affirmed by the Appellate Division ( 262 App. Div. 665) and by this court ( 288 N.Y. 687). The Supreme Court of the United States reversed and by its mandate sent the case back to the Supreme Court of New York for further appropriate proceedings, but "without prejudice to a determination of the nature of the employment of any members of the class on whose behalf this suit has been brought." ( 318 U.S. 740, 742.) After that ultimate decree had in due course been made the judgment of the Supreme Court of New York, the plaintiffs moved for a summary recovery under rule 113. Special Term granted that motion and denied a cross motion by the defendant for dismissal of the complaint. The Appellate Division affirmed, one Justice dissenting, and the controversy is now before us a second time on an appeal by the defendant from that determination.
The case was originally submitted upon an agreed statement of facts which has never been altered in any way. It is thereby stipulated that the work on which the plaintiffs' claims are based was done by them under a contract through which the defendant undertook with a railroad company to reconstruct two bridges that were instrumentalities of interstate commerce. ( 262 App. Div. 665, 667.) These conceded facts are now said by the defendant to be insufficient as a basis for disposition of the issue as to whether the plaintiffs were "engaged in commerce" at the time they were so employed.
We concur with the courts below in their rejection of that contention. The agreed statement of facts on the face of it was a case within the statute. ( McLeod v. Threlkeld, 319 U.S. 491, 494.) No other or different showing was attempted by the defendant on the present motions, despite the proviso we have quoted from the mandate of the higher court. On the record as it stood, a summary judgment for the plaintiffs was inevitable.
The remaining questions have to do with costs and interest that were allowed to the plaintiffs.
The award to them of costs in all courts was not unauthorized. (Civ. Prac. Act, § 1470, subd. 11; Murtha v. Curley, 92 N.Y. 359, 361-362.) Stevens v. Central Nat. Bank ( 168 N.Y. 560) is not authority for a different view. In the Stevens case this court was reversed by the Supreme Court of the United States on one point, but the substance of our judgment in favor of the plaintiffs was left undisturbed and in that situation the defendants were not to be treated as parties who had ultimately prevailed.
As we read the Federal cases, the liability for liquidated damages under the Fair Labor Standards Act is contractual in character. ( Overnight Motor Co. v. Missel, 316 U.S. 572, 583; Northwestern Yeast Co. v. Broutin, 133 F.2d 628; see, too, Cox v. Lykes Brothers, 237 N.Y. 376; Wright v. State of New York, 223 N.Y. 44; Calvin v. Huntley, 178 Mass. 29.) In that view, the plaintiffs were entitled to interest on the whole of their recovery including the liquidated damages. (Civ. Prac. Act, § 480; see Klaxon Co. v. Stentor Co., 313 U.S. 487, 498.)
The judgment should be affirmed, with costs.
I dissent only from so much of the decision as holds that the plaintiffs are entitled to interest on the "liquidated damages" which, under the statute, must be paid by any employer who violates the provisions of sections 6 and 7 of the Fair Labor Standards Act. The liability for such payment, though not a penalty, is imposed in the statute as liquidated damages for the "retention of a workman's pay". They are so denominated in the statute and they are intended to provide "compensation" for injury suffered by a wrongful act which "may well result in damages too obscure and difficult of proof for estimate other than by liquidated damages." ( Overnight Motor Co. v. Missel, 316 U.S. 572.) Section 480 of the Civil Practice Act does not, I think, apply in such case. The question has not heretofore been raised in any case where this court has affirmed a judgment which included interest on liquidated damages.
RIPPEY, LEWIS and DESMOND, JJ., concur with LOUGHRAN, J.; LEHMAN, Ch. J., dissents in part in separate opinion in which CONWAY and THACHER, JJ., concur.
Judgment affirmed. (See 293 N.Y. 872.)