Petition for a Writ of Certiorari — Stoike v. First National Bank

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Supreme Court of the Hnited States

OCTOBER TERM, 1943.

No. 1°20

ARTHUR H. STOIKE,

Petitioner-Respondent Below,

—against—

FIRST NATIONAL BANK OF THE CITY OF

NEW YORK,

Appellant Below.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF NEW

YORK, AND BRIEF IN SUPPORT THEREOF.

DANIEL WILLIAM LEIDER,

Counsel for Petitioner.

Rosert S. Garson,

Of Counsel.

THE Court PRESS, N. Y. C.

EF CROPL EY

INDEX.

PAGE

Perition For Writ oF CErriorart:

1—Application for Leave to Submit Petition on

Less Than the Required Number of Copies

afb OO hs cdc enee ach on bln eee eas 1

9—Summary Statement of the Matter Involved... 1

ee er pre errr rr ewer or rae Shree +

4—Reasons for Issuance of Writ.............-. )

Brier in Support oF Peririon:

Opinions of the Courts Below............+++++5- 7

Jurisdiction and Statement of the Case.......... 7

Specification of Errors ........-.. see eee eee ees 8

i) err rrerrrryT ere rey eer ere cree ee 8

Porxt I—-Defendant, First National Bank of the

City of New York, is engaged in commerce and

in the production of goods for commerce within

the meaning of the Fair Labor Standards

De ge RRR ee ees hae eas 8

A. Banking Is a Commercial Activity and

Banks Are Engaged in Commerce....... 8

B. The Defendant Was Engaged in Inter-

state Commered 6 oc cic ccs tas sietiees eee

(. The Defendant Was Engaged in the Pro-

duction of Goods for Commerce.......... 12

Pornt 1]—Plaintiff’s work was so closely connected

with the interstate activities of the defendant

as to be a part thereof within the meaning of

the Fair Labor Standards Act................ 15

COMCPUBIOR 65 cscs esnces ek es Ke kee Rates ee 3

NS EEE EP Oe re a SM ETA Saad a ea mate ae 19

i

TasLeE oF Cases CITED:

PAGE

Arsenal Building Corporation v. Walling, 316 U. S.

> SAR ay oer amen wie ene gree ey wey pers ae 14

Associated Press v. Labor Board, 301 U.S. 108...... ll

Consolidated Edison Company v. National Labor

Relations Board, 305 U. S. 197..........ee eee. ll

Ekeii v. U. S., 142 U. S. GOL... cee cece eee eee y

Gibbons v. Ogden, 9 Wheat 1.......... eee eee eeeee 9

Head Money cases, 112 U.S. 580... 66. eee eee eee eee 9

Johnson v. Hamilton National Bank (6 Labor Cases,

par. 281) 2.22. ccc e eee eee cece eee eee e cere neces 14

Kirschbaum vy. Walling, 316 U. S. 517............ 13, 14

Lofther v. First National Bank of Chicago, 48 F.

Supp. 692 (6 Labor Cases, par. Ree 14

Lorenzetti v. American Trust Company, 45 F. Supp.

128 (6 Wage and Hour Cases 269)............ 14

McLeod vy. Threlkeld (Decision handed down June

7th, 1943. No official report yet)............+-. 15, 16

National Labor Relations Board v. Jones & Laughlin,

Bie ee peer pe PT 11

Osborne v. Bank of the United States, 9 Wheat 738.. 9

Passenger cases, T Howard 283.......00+0+00e ee ees 9

Pederson v. Delaware, L. & W. R. R., 299 U. 8. 146.. 16

Pederson vy. Fitzgerald Construction Co., decision

handed down February 8, 1943, 63 Sup. Ct. 558. .5, 16

Plass v. Central New England Ry. Co., 242 U. 8.

SO oe kicdkand souks es Verein eine 16, 17

Tommy Johnson v. Dallas Downtown Development

Co. (Certiorari denied April 19th, 1943)........ 14

Western Union v. Texas, 105 U. S. 460..........45- ll

ili

Orner AvutTHoritirs CITED:

PAGE

Fair Labor Standards Act of June 25th, 1938 (52

Stat. 1060, Ch. 676; 29 U. S. Code, See. 201,

ME ria ka ken dees cow vnaeee ss 1, 3, 4, 5, 13, 15, 16

NS asa shag ROR REM RRO OS aa

eo SBR Spies ESP ras Feptpeeene a ir aire peer eie 12

Federal Employers Liability Act................... 15, 16

Judicial Code, See. 237(b), U. S. Code, Title 28,

i NE? SA eUG Reseda es yaa Few bee eee es 4

New York Civil Practice Act, Sections 546 and 548.. 1

Supreme Court of the United States

OCTOBER TERM, 1943.

No.

y<

>

Artur H. Stork,

Petitioner-Respondent Below,

—against—

First Nationa Bank or tue City or New York,

Appellant Below.

Petition for Writ of Certiorari.

To the Honorable the Chief Justice and the Associate

Justices of the Supreme Court of the United States:

Your petitioner, Arthur HH. Stoike, respectfully shows:

1, Application for Leave to Submit Petition on Less Than

the Required Number of Copies of the Record.

Petitioner has been unable to secure the required num-

ber of copies of the record and respectfully moves this

Court that this petition be submitted and accepted by

this Court on less than the required number of copies.

2. Summary Statement of the Matter Involved.

This action was brought to recover overtime pay under

the Fair Labor Standards Act of June 25th, 1938 (52

Stat. 1060, Ch. 676; 29 U. 8. Code, Sec. 201, et seq.) and

was submitted to the Supreme Court of the State of

New York, Appellate Division, First Department, on an

2

agreed statement of facts, pursuant to Sections 546 and

548 of the New York Civil Practice Ag¢t. On the decision

of the court, judgment in favor of the plaintiff petitioner

was entered on July 21st, 1942. By permission of the

Supreme Court, Appellate Division, First Department,

the defendant, First National Bank, appealed to the Court

of Appeals of the State of New York. That court: re-

versed the Appellate Division and directed judgment in

favor of the defendant. This petition is on behalf of the

plaintiff, Arthur H. Stoike.

Summarized, the facts are these: The defendant is a

national banking association, originally chartered in 1863,

which ranks amongst the largest national banks in the

country (pp. 2-8, fols. 4-28). It does a general business

both for customers located within and without the State

of New York, numbering among them railroads, insurance

companies, automobile manufacturers and others (pp. 2-9,

fols. 5-25). The defendant bank accepts for collection

from its customers and undertakes the collection of

checks, drafts, coupons and commercial paper of all kinds,

payable within the State of New York, and at other places

throughout the country (p. 9, fols. 26-27). The bank

also undertakes the forwarding of funds within the State

of New York and all over the country (pp. 11-12, fols.

32-35). The bank lends money to borrowers located

within the State of New York, and in other states against

notes and loan agreements, with or without collateral

(p. 12, fols. 35-36). Collateral may exist of conditional

sales contracts or the like in connection with equipment

purchases (p. 12, fols. 35-36). In short, defendant hank

engages in a general commercial banking business as

well as a trust company business (pp. 9-14, fols. 25-41).

Defendant also undertakes some production for commerce

in that it prepares cashier’s check and customer’s credit

reports, which are used in and transmitted in interstate

commerce (p. 14, fols. 40-41). Many of the other services

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performed by the bank are actually production of goods

under the definitions given in the Act.

On November 29th, 1937 plaintiff was employed by

the defendant for a six night week, at eight hours a niglit,

or forty-eight hours per week, as a nightporter in and

about the building at No. 2 Wall Street, New York City

(p. 16, fol. 48). For the purpose of this action it was

specifically stipulated that the plaintiff was an employee

of the defendant (p. 2, fol. 4). The building houses de-

fendant’s banking facilities and contains in addition a

large number of floors which are rented out as office

space (pp. 2-38, fols. 6-7). In the period during which

the Fair Labor Standards Act was in effect, plaintiff

worked forty-eight hours per week for fifteen weeks (p. 18,

fol. 54). The plaintiff during six of the fifteen weeks in

question devoted approximately one-half of his working

hours to cleaning in and about the actual banking premises

(p. 18, fol. 54). During this entire period plaintiff's

salary was $27.00 per week, or at the rate of $.5625

per hour (p. 19, fol. 55). He received no overtime pay.

The Court of Appeals said in its opinion that

«“* * * Plaintiff does not claim that we are dealing

with a problem involving ‘the production of goods

> 99

for commerce’.

The Wage and Hour Division of the Department of Labor

appeared in the Court of Appeals by permission of the

Court of Appeals as amicus curiae and was permitted to

argue. A claim as to production for commerce was made

by the Wage and Hour Division and is and was toneurred

in by plaintiff. The Court of Appeals found that the

cleaning operations which plaintiff was required to per-

form in defendant’s banking quarters were not so closely

related to the many banking services performed that we

can say as a matter of law that plaintiff’s cleaning was

a

+

a part of such banking services, and, therefore, that he

was “engaged in interstate commerce”. The Court of

Appeals in an opinion by Judge Lewis reversed the Ap-

pellate Division and directed judgment for the defendant,

It is from this decision of the Court of Appeals that

petitioner comes praying for a Writ of Certiorari.

3. Jurisdiction.

The date of the decision of the Court of Appeals of the

State of New York of which review is here sought, is

April 15th, 1943. The original remittitur is dated April

16th, 1943. The remittitur was thereafter amended by

order of the Court of Appeals dated May 27th, 1943.

An order making the judgment of the Court of Appeals,

the judgment of the Supreme Court of the State of New

York, was entered in the Appellate Division of the

Supreme Court, First Judicial Department, on the 19th

day of June, 1943. Judgment on the remittitur was en-

tered in Supreme Court, State of New York, on the 8th

day of July, 1943. The statute granting the power to

review herein is Judicial Code, See. 237(b), U. S. Code,

Title 28, See. 344(b). There is here involved the Fair

Labor Standards Act of June 25th, 1938, 52 Stat. 1060,

Chapter 676; 29 U. S. Code, See. 201 et seq., and the

Court of Appeals of the State of New York decided

against plaintiff's right to a recovery thereunder. The

‘statute is set forth at length in the appendix. The

amended remittitur recites that “this cause was brought

under the provisions of a federal statute, namely, the

Fair Labor Standards Act of June 25th, 1938 (52 Stat.

1060, Ch. 676; 29 U. S. Code, See. 201 et seq.), and an

interpretation of that statute was necessarily involved

in the decision by this Court”. :

~

v

The following case is believed to sustain the jurisdic-

tion of the Supreme Court of the United States:

Pederson vy. Fitzgerald Construction Co., deci-

sion handed down February 8, 1943, 63 S.C.

558.

In the foregoing case a writ of certiorari was allowed

by this Court under the identical statute here involved

and under identical circumstances, the Court of Appeals

having held that the employee was not doing such work

as to be covered by the Fair Labor Standards Act.

This case is within the jurisdictional provisions in

that this action was brought under the Fair Labor

Standards Act of June 25th, 1988 (52 Stat. 1060, Ch.

676; 29 U. S. Code, See. 201, et seq.). A final judement

has been rendered in this cause by the Supreme Court

of the State of New York on remittitur of the Court of

Appeals of the State of New York, the highest Court of

the State of New York in which a decision in the suit

could be had.

4. Reasons for Issuance of Writ.

1. The Court of Appeals of the State of New York

has decided highly important questions based on the inter-

pretation and application of a United States Statute. This

was the first time this question was presented to the State

Court ef Appeals and if this Court grants certiorari, it

will be the first time that this court will consider the

application of the statute to this set of facts.

2. The decision of the Court of Appeals of the State of

“New York is directly in conflict with the decisions of this

Court under similar but more limited statutes, and with

the decisions of this Court under this statute.

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3. There are a large number of cases presently pending

in which the same question arises, and a larger number

with similar questions. Many, if not all of these cases,

are awaiting the disposition of this appeal ean be disposed

of, if this court will grant this petition and decide this

‘ase on the merits.

4. There are presently pending similar cases in which

the lower court has taken an opposite point of view from

that of the Court of Appeals in the instant case, and a

decision of this court on the question here presented is

necessary as a guide when this question is again presented,

ARTHUR IL. STOIKE,

Petitioner,

By Daxten Wiuii1am Leiner,

Counsel for Petitioner.