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July 20, 1951


The opinion of the court was delivered by: WEINFELD

This action is brought pursuant to Title 46 U.S.C.A., §§ 596 and 597, to recover overtime compensation from the respondent City of New York, by whom libellant was employed as an engineer on sludge vessels owned by it. The libel alleges that on various occasions between 1938 and 1946 libellant worked in excess of his regular hours of employment, thereby becoming entitled to overtime pay. The respondent resists payment upon the ground that libellant as a City employee may not recover compensation in excess of the amount fixed in the City Budget and only the Board of Estimate may alter the rate or amount; and further, assuming arguendo an agreement, express or implied, to pay overtime, the failure of libellant to protest when signing the City's payroll precludes recovery.

The instant case, which is one of 43 pending actions brought by seamen, officers and captains employed on such sludge vessels, was tried under a stipulation and that the decision herein shall be binding in all cases.

The parties also stipulated the following facts:

 Libellant's salary, insofar as his regular hours are concerned, was fixed by the City Budget on a monthly basis, payments being made semi-monthly. The sludge boats on which libellant worked are certificated by the United States Coast Guard and are licensed as coastwise vessels. For the purpose of trial it is assumed that libellant performed extra work aboard such sludge vessels not within his regular hours at the times referred to in the libel for which he has not received payment from respondent. Except in one or two instances, he signed the payroll without noting a written protest when receiving his pay.

 The foregoing stipulation was supplemented by testimony received at the trial which may be summarized as follows:

 The sludge vessels are used to transport waste from the municipal sewage plants operated by the New York City Department of Public Works for disposal at sea. A normal return trip to and from the dumping point, some 35 miles in each direction, runs approximately 8 hours. Eight hours of actual duty aboard the vessel constitute the normal work day. *fn1"

 The present claim is for time spent in excess of 8 hours per day occasioned by either delays due to weather conditions or additional daily trips which were made under direct orders of the master of the vessel. Libellant was granted some compensatory time off for overtime work performed at various times between January 31, 1938 and March, 1946, but this was not equivalent to the excess hours worked and no cash payment has ever been made for the difference for which recovery is sought by this suit. Since 1947 libellant has received full payment in compensatory time for overtime hours.

 As already noted, a substantial part of the overtime work was performed by order of the captains in charge of the vessels. Libellant was assured thereafter by the Superintendent in charge of sludge boat operations of the Department of Public Works that he would be compensated for his overtime either in cash or equivalent time off. On one occasion in the spring of 1938 when the crew of one of the vessels refused to make a second trip unless a higher authority than the captain assured them either of payment or time off, they returned to work only after the Assistant to the Commissioner of the Department advised them that their claims would be 'taken up' with the Budget Director, although he did not expressly promise them overtime compensation. Efforts of libellant and other sludge workers to see and discuss their claims with the Commissioner of Public Works failed, although they did confer with a Deputy Commissioner, who referred them to an Assistant Corporation Counsel of the City of New York, who advised them the matter would have to go through the Budgetary process.

 The issues in this case have been narrowed by a decision made by District Judge Ryan on a pretrial hearing of one of the companion cases, which by agreement of the parties is binding in all 43 cases. Dendrinos v. City of New York, D.C., 86 F.Supp. 688.

 Judge Ryan held that libellant is a seaman and therefore his rights are governed by federal statute rather than by local state or municipal law, *fn2" and he has a right to maintain this action under 46 U.S.C.A. §§ 596, 597 for wages withheld. That statute does not provide for overtime payment to a seaman in the absence of a contract; it permits recovery of wages only on the basis of an agreement. Absent any allegation by libellant of an express agreement by respondent to pay overtime wages, the issue as to whether under all the circumstances a contract might be implied in fact was left for determination upon the trial. Judge Ryan also held that the punitive or double wage provision of 46 U.S.C.A. § 596 for failure to make payment 'without sufficient cause' may not be invoked since there is a substantial question of law as to whether libellants are entitled to payment for the extra hours of work. Finally, he held that although signing of the payroll and acceptance of his salary by libellant without protest did not operate as a release of his claim, it is 'potent evidence' that such payment was in full under the terms of his employment by the City, and the 'signing without protest places upon (him) a very heavy burden of proving that these receipts were not in full accord and satisfaction of (his) claims.' Dendrinos v. City of New York, supra, 86 page 690.

 Thus the remaining issues to be decided are (1) the existence of an implied contract for the payment of overtime compensation, which involves the capacity of the respondent, City of New York, to enter into such an agreement and (2) whether the signing of the payroll without protest constitutes an acceptance of salary payments in full accord and satisfaction of any claim.


 An implied in fact contract arises from the "presumed' intention of the parties as indicated by their conduct.' Martin v. Campanaro, 2 Cir., 156 F.2d 127, 129. In contrast to an express contract, it stems from 'Mutual agreement and intent to promise * * * where the agreement and promise have not been expressed in words'. 1 Williston on Contracts, Rev.Ed. 8.

 Liability will attach if it is known that services are rendered with an expectation of compensation, even though no request for their performance has been made. 'It is a question of fact if services are accepted whether a reasonable man in the position of the parties would understand that they ...

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