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Pericin v. Denburg''s Modern Bakery

Decided: September 16, 1943.

STEVE PERICIN, PLAINTIFF-APPELLANT,
v.
DENBURG'S MODERN BAKERY, DEFENDANT-APPELLEE



On appeal from the Supreme Court.

For the plaintiff-appellant, William Wackenhuth.

For the defendant-appellee, Harkavy & Lieb.

Wells

The opinion of the court was delivered by

WELLS, J. This is an appeal from a judgment for the defendant entered in the Supreme Court upon an order striking out the plaintiff's amended complaint on the grounds that it was insufficient in law and failed to set forth a legal cause of action and also that it was sham.

The suit was to recover payment for overtime services alleged to have been performed by plaintiff for defendant.

Inasmuch as the question involved in this appeal is the propriety of the order of the trial court in striking out the amended complaint we deem it advisable to set forth somewhat fully the allegations of the amended complaint.

Paragraph 1 alleges in substance that, beginning in the month of December, 1936, plaintiff was in the employment of defendant as a baker, at its bakery in Newark, New Jersey, "at a weekly wage of forty-five ($45.00) dollars, being a sixty hour week," and so continued in said employment until about the month of March, 1942.

Paragraph 2 says: "While so employed as a baker, as aforesaid,

plaintiff was permitted, suffered and ordered to work more than ten hours each day during each and every week of said employment because of an emergency in said bakery."

Paragraph 3 reads: "Plaintiff was ordered, directed and permitted to work more than sixty hours per week, to wit, plaintiff was ordered, directed and permitted to work five hours overtime each and every day, making 30 hours overtime each and every week, for the period of time aforesaid."

Paragraph 4 alleges that there is due and owing to plaintiff by reason of working overtime the sum of $6,142.50 "under and by virtue of an act entitled: 'An act regulating the age, employment, safety, health and work hours of persons, employees and operatives in places where biscuits, pies, bread, crackers, cakes, macaroni and other food stuffs, confectionery, candy, ice cream or frozen sweets are manufactured or made for the purpose of sale, and providing for the sanitation, sanitary condition and ...


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