Judgment affirmed, with costs, without prejudice to an application in the trial court for reasonable attorney's fee for services rendered upon an appeal.
We do not pass on the question whether the counsel fee heretofore granted is subject to increase for services rendered upon an appeal.
Two questions involving the construction of the Fair Labor Standards Act of 1938 and a question under the Federal Constitution were duly presented and necessarily passed upon by this court. The defendant contended:
1. That an action may not be maintained under section (b) of the Act by an employee solely for the recovery of liquidated damages when it is admitted that all overtime compensation was voluntarily paid in full by the employer prior to the institution of suit. *Page 668
2. That the release of all further claims and damages under the Fair Labor Standards Act executed by the employee and delivered to his employer at the time he received payment of all overtime compensation due him under the Act is a good defense to an action subsequently brought by such employee solely to recover liquidated damages.
3. That the imposition of liquidated damages deprives an employer of property without due process of law in violation of the Fifth Amendment of the Constitution of the United States.
This court held against the defendant on each of these three contentions and unanimously affirmed a judgment in favor of the plaintiff.
Concur: LEHMAN, Ch. J., LOUGHRAN, LEWIS, CONWAY, DESMOND and THACHER, JJ. RIPPEY, J., taking no part.