Palmer v. Santvoord — 17 A.D. 194

Majority

p. 194

Wilson E. Palmer, Respondent, v. Seymour Van Santvoord and Danforth Geer, as Receivers of The Walter A. Wood Mowing and Reaping Machine Company, Appellants. In the Matter of the Application of Wilson E. Palmer for an Order Directing Seymour Van Santvoord and Danforth Geer, as Receivers of The Walter A. Wood Mowing and Reaping Machine Company, to Pay said Palmer the Wages Due him as a Laborer, etc., of said Company as a Preferred Claim.

Headnote

Who is an “ employee,, operative or laborer■” entitled to a preferential payment by a receiver of d. eoi'pomtion. •

A person employed by a mowing and reaping -machine manufacturing corporation to set up its machines, to take them down, to repair.them,- to go from place to ' place and set them up for farmers and to unpack and repack them, although- also employed by the corporation to sell its machines, is -to be considered an

p. 195

“employee, operative or laborer” within the meaning of chapter 376 of the Laws of 1885, and entitled to a preference in payment from, moneys of the corporation in the hands of its receiver.

Merwin, J., dissented.

Appeal by Seymour Van Santvoord and another, as receivers of .the Walter A. Wood Mowing and Reaping Machine Company, from an order of the Supreme Court, made at the Rensselaer Special Term and entered in the office of the clerk of the county of Rensselaer on. the 28th day of January, 1897, directing them to pay the plaintiff his wages as a preferred claim under the statute.

The respondent was employed by the Walter A. Wood Mowing and Reaping Machine Company prior to the appointment of the appellants as its receivers. The nature of his employment is stated in the appeal papers as follows:

Wilson E. Palmer “ was employed by the said Walter A. Wood Company to set up machines, and to take them down and to fix the same when out of repair; to go from place to place and fix and set up the machines of said company for farmers to whom the machines had been sold; to unpack the machines and to repack them, and ship the same to company when necessary ; also, to sell or solicit sales of the machines of said corporation ; and did, in the discharge of his duties as the employe, operative and laborer of said company, sell machines for them, and that, as such operative, employe and laborer, he set up and repaired machines for said company while in their employ as aforesaid, going from place to place so to do; took the machines from the railroad, unpacked same, bolted together and screwed together the same, and did all necessary work to make said machines work, bolting them together and fitting them, so they would work, and that he performed manual labor as well as the labor of selling machines, and obeyed and carried out the instructions, orders and directions given to him by said corporation through its officers and servants.”

The question submitted is whether he was an “ employee, operative or laborer,” and Ills claim for wages against said company entitled to a preference under the provisions of chapter 376, Laws of 1885, which enacts that: “ Where a receiver of a corporation, created or organized under the laws of this State and doing business therein, other than insurance and moneyed corporations, shall be appointed,

p. 196

the wages: of the employees, operatives and laborers thereof shall be preferred to every other debt or claim against such corporation, and shall be paid by the receiver from the moneys of such corporation which shall! first come to his-hands.” '

G. B. Wellington, for the appellants.

Amasa J. Parker, for the respondent.

From the statement contained in the Case as to the nature of the services performed by the respondent for the Walter A. Wood Mowing and Reaping Machine Company prior to the appointment of the appellants as its receivers, we think we must hold that he was an “employee, operative or laborer,” within the meaning of chapter 376, Laws of 1885.

His business was “ to set up machines and to take them do wn, and to fix the same when out of repair; to. go from place-to-place andfix and set up the machines of said company for farmers;' * * * to unpack the machines, and to repack them.” Although respondent was also employed to sell machines, as well as pack and unpack them, bolt them together, repair them, aiM do all the necessary • work, and put them in working order ■—giving the. language of the act above quoted a fair and -reasonable - construction — I think the respondent should be deemed an “ employee,- operative, or laborer ” within its provisions. (Brown v. A. B. C. Fence Co., 52 Hun, 151 ; People v. Beveridge Brewmg Co., 91 id. 313.)

The opinions in the cases cited give a satisfactory construction to the .act of 1885, and, -referring to them, we deem it unnecessary to. . enter into a discussion of the ease. '

The conclusion -we reach does not, we think, conflict with the doctrine stated in People v. Remington ( 45 Hun, 329 ), where the. claims for a preference under the act in question were made by the superintendent, and attorney of the. corporation. Nor were the Services rendered by the respondent for the Walter A. Wood Mowing and Reaping Machine Company similar to those of -the applicants.' whose claims were disallowed in The Matter of Stryker ( 73 Hun, 327 ). In that case, those applying for a preference under the act •in question were the bookkeepers, superintendent and foreman, paid

Dissent

p. 197

"by the month, and the performance of manual labor by whom, if performed at all, was merely incidental to their general employment.

In this case, the services rendered by "Wilson E. Palmer for the Walter A. Wood Mowing and Reaping Machine Company were similar to those rendered by the" applicant whose claim for a preference under the act in question was allowed in Brown v. A. B. C. Fence Co. (supra).

We conclude that the order should be affirmed, with costs.

All concurred, except Merwin, J., dissenting.

The principle enunciated in People v. Remington ( 45 Hun, 329 ), and adopted by the Court of Appeals in its affirmance of the order in that case upon the opinion delivered at the General Term ( 109 N. Y. 631 ), is, I think, applicable to this case, and leads to the reversal of the order appealed from. It seems to me quite plain that the grade of service in the present case is not within the meaning of the statute as construed in the Remi/ngton case.

Order affirmed, with ten dollars costs and disbursements.