Berkowitz v. All Service Laundry Corp. , 276 A.D.2d 870 ( 1949 )

Nolan, P. J., Cars-well 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 Pair Labor Standards Act of 1938 (TJ. 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.]