Opinion
March 8, 1946.
Appeal from Supreme Court, Bronx County, COHALAN, J.
I. Ben Greenman of counsel ( Louis C. Paley with him on the brief), for appellants.
Louis Mansdorf of counsel ( John F.X. McGohey, United States Attorney, Southern District), for respondents.
Plaintiffs, timekeepers of the workmen employed in the construction of Camp Shanks, Orangeburg, N.Y., brought this action against their contractor employers to recover overtime wages under the Fair Labor Standards Act of 1938 (U.S. Code, tit. 29, § 201 et seq.). They presented their case on the theory that the entire building of Camp Shanks was interstate commerce. Their proof failed to support the theory, it appearing that the great bulk of the work was local building and construction, and the trial court properly held that plaintiffs had not met the tests of interstate commerce laid down in the controlling cases.
Plaintiffs emphasize certain parts of the work, such as dock rehabilitation, repairs of roads and unloading of material coming from outside the State, which might be regarded as interstate commerce. They did not attempt, however, to identify any particular individuals with such work or to indicate any percentage or proportion of time which they individually or collectively devoted to such work. Having failed to so particularize or to establish that the work generally was interstate commerce, plaintiffs failed to sustain the burden which was theirs of proving that their work was interstate commerce. ( Stoike v. First National Bank, 290 N.Y. 195, 200; Warren-Bradshaw Co. v. Hall, 317 U.S. 88, 90.)
The judgment should be affirmed, with costs.
MARTIN, P.J., TOWNLEY, GLENNON, CALLAHAN and PECK, JJ., concur.
Judgment unanimously affirmed, with costs.