In re the Assignment for the Benefit of Creditors of Wright Metal, Inc.

Majority

p. 47

In the Matter of the Assignment for the Benefit of Creditors of Wright Metal, Inc. Samuel J. Lasser, as Assignee, Appellant; G. O. Sandberg et al., Respondents.

Argued February 26, 1940;

decided April 23, 1940.

p. 48

Louis A. Tepper and Joseph Lotterman for appellant.

The surcharge was erroneous in so far as the claim of the general manager and factory superintendent was concerned. (Cons. Laws, ch. 31, § 2, subd. 5; Matter of Stryker, 158 N. Y. 526 ; Austin v. City of New York, 258 N. Y. 113 ; Matter of American Lace Works, 30 App. Div. 321 .)

Ross L. Weeks and Emmet H. Ross for respondents.

Except in the situations provided for in the “ New York State Labor Relations Act ” contained in article 20 of the Labor Law (Cons. Laws, ch. 31), an “employee” in the sense of the statute “ means a mechanic, workingman or laborer working for another for hire” (§ 2, subd. 5). Emil N. Johnson, superintendent of the factory of the assignor-corporation, was not such an employee and was not entitled to be paid wages in accordance with section 196 of the statute. Hence, it was error to surcharge the appellant with the amount of Johnson’s claim ($1,531).

The orders should be modified in accordance with this opinion and, as so modified, affirmed, without costs.

Lehman, Ch. J., Loughran, Finch, Rippey and Conway, JJ., concur; Sears and Lewis, JJ., taking no part.

Ordered accordingly.

Cases cited

In re Stryker 158 N. Y. 526 N.Y. 1899-04-18 p. 48
Austin v. City of New York 258 N. Y. 113 N.Y. 1932-01-05 p. 48