Opinion
December 27, 1949.
In an action under the Fair Labor Standards Act of 1938 ( U.S. Code, tit. 29, § 201 et seq.), as amended, and as affected by the Portal-to-Portal Act of 1947 (U.S. Code, tit. 29, § 251 et seq.), to recover payment for overtime work alleged to have been performed after May 14, 1947, order denying appellants' motion to dismiss the complaint affirmed, with $10 costs and disbursements, with leave to answer within ten days from the entry of the order hereon. Overtime work performed after May 14, 1947, consisting of the employee's principal activities, is compensable under section 7 of the Fair Labor Standards Act of 1938 (U.S. Code, tit. 29, § 207). The provisions of that section are not repealed by section 4 of the Portal-to-Portal Act of 1947 (U.S. Code, tit. 29, § 254) insofar as payment for overtime work consisting of the principal activities of the employee performed on or after May 14, 1947, is concerned. It is only when overtime compensation is sought for work not done in the regular course of the employee's duties, such as walking from an entrance gate to the place of actual performance of his duties, changing clothes before and after work, punching time clocks, etc., that the statute requires allegations and proof that such work was performed and is compensable pursuant to a contract, custom or practice. The amended complaint sufficiently alleges the performance by plaintiff of principal activities pursuant to contract, custom or practice, and alleges employment by defendants in such activities for more than forty hours in each work week, for which plaintiff has not been paid. While a bill of particulars may establish that plaintiff was not employed by any one of the defendants for more than forty hours in any week, the amended complaint, as a matter of pleading, is sufficient. Nolan, P.J., Carswell and Sneed, JJ., concur; Adel and Wenzel, JJ., agree with the holding that the complaint sufficiently alleges employment in the performance of principal duties for more than forty hours per week, and that such type of employment is compensable under section 7 of the Fair Labor Standards Act of 1938 (U.S. Code, tit. 29, § 207), but dissent from the holding that the complaint as a whole is sufficient, and vote to reverse the order and grant the motion to dismiss the complaint, with leave to plead over, on the ground that it does not appear that plaintiff was employed by any one employer for more than forty hours per week. The rule of liberality in construction of pleadings does not save a complaint that is insufficient to state a cause of action ( Didier v. Macfadden Publications, 299 N.Y. 49, 53), and a bill of particulars should not be read to supply deficiencies in essential allegations. [See post, p. 917.]