In re the Final Accounting By Scott — 69 N.Y. St. Rep. 89

Majority

p. 89

In the Matter of the Final Accounting by William E. Scott el al., as Assignees of William A. Drake.

(Supreme Court, General Term, Second Department,

Filed July 26, 1895.)

Headnote

Assignment fob benefit of cbeditobs—Pbeference.

The right of an employe of the assignor to a preference is not lost by the fact that he has taken the assignor’s note for the wages due.

Appeal from an order, denying a motion by an employe to-have her claim allowed as a preferred claim against the assignor’s-estate.

John W. Lyon, for app’lt; Lewis F. Carr, for resp’ts.

This is an appeal from an order of the county judge of Orange county denying a matter, on behalf of Laura C. Aber, to have her claim allowed by the assig

p. 90

nees as a preferred claim. William A. Drake made an assignment for the benefit of his creditors on the 26th day of January, 1893, to the above-named assignees, who accepted the trust, and proceeded to administer the same. They advertised for claims as the law requires. Laura C. Aber, the appellant, presented to and filed with the assignees her claim against the estate of the assignor as one on his promissory note for $1,400, dated March 27, 1890, and payable one year after date. The assignees rendered their final accounting March 26, 1895. Two days thereafter, Laura C. Aber, to whom a dividend was made as a general creditor, gave notice of a motion for April 23, 1895, to compel the assignees to allow her claim as a preferred claim. That motion was heard and denied by the county judge, and the appeal is from that order of denial. There is no dispute about the facts. Laura C. Aber, for many years prior to March 27, 1890, was a domestic servant of the assignor, Drake; and on that day he was indebted to her for services in the sum of $1,400, for which he gave her his promissory note, payable one year after date. She held the note, and presented it to the assignees without claiming any preference; and they resisted her present claim because she accepted the note for her wages, and made no claim under it for a preference under the assignment.

We think the denial of the motion by the county judge was erroneous. The claimant had been an employe of the assignor, and he owed her $1,400 for her wages, as such, at the assignment; and the debt was entitled to a preference, under the statute. The note was merely the evidence of the debt, and was not the debt itself. The note was not accepted as a payment, and its only effect was to extend the time of the payment of the debt. , The failure to present the note to the assignees, and make the demand for a preference, when the claim was first presented, has resulted in no injury to any one, and it would be unjust to deprive the appellant of her just rights because she failed to make a proper demand in time. The note can be surrendered at any time to"the assignees, and no claim upon it can be prosecuted. In re Heath, 46 Hun, 114 ; 11 St. Rep. 627 . The order should be reversed, with $10 costs and disbursements, and the motion granted, without costs.

Al'l concur.