In re New York Locomotive Works , 73 Hun 327 ( 1893 )

MERWIN, J.

The appellants claim that they are within the provisions of chapter 376, Laws 1885, which provides that:

“When 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, 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.”

The case of Short v. Medberry, 29 Hun, 39, is cited as controlling in appellants’ favor. That was an action against a stockholder of the Rochester Frear Stone Company to enforce that provision of the statute (section 18, c. 40, Laws 1848) which provides that the stockholders of the corporation shall be liable “for all debts that may be due and owing to all their laborers, servants and apprentices, for services performed for such corporation.” Curtis, the assignor of the plaintiff, applied to the company for a situation, and was told that one would be given to him if he would procure a loan of $3,000 for the company. This he did, and began to work for the corporation at a salary of $1,000 a year, payable monthly, or as he wanted his pay. He acted as foreman, took part in the manual labor required to manufacture the stone, kept the time of the men, solicited orders, collected bills, and did whatever was required of him by the secretary of the company, who acted as its general superintendent. It was held that Curtis was a laborer or servant, within the meaning of the act, and it was said that “he rendered manual service of the same kind as that performed by the other laborers in the employ of the company, and it seems to have been one of his principal duties, and not a mere incident to Ms position.” The same statute was under consideration in the case of Wakefield v. Fargo, 90 N. Y. 213, which was decided shortly before the Short Case, but probably not then published, as it is not referred to in that case. In the Wakefield Case it is said, (pages 217, 218:)

“It is plain, we think, that the services referred to are menial or manual services; that he who performs them must be of a class whose members usually look, to the reward of a day’s labor or service for immediate or present support, from whom the company does not expect credit, and to whom its future ability to pay is of no consequence. One who is responsible for no independent action, but who does a day’s work or a stated job under the direction of a superior. Gordon v. Jennings, 9 Q. B. Div. 45; Dean v. De Wolf, 16 Hun, 186, affirmed 82 N. Y. 626. * * * To the language of the act must be applied the rule common in the construction of statutes,—that, when two or more words of analogous meaning are coupled together, they are understood to be used in their cognate sense, express the same relations, and give color and expression to each other. Therefore, although the word ‘servant’ is general, it must be limited by the more specific ones, ‘laborer and apprentice,’ with which it is associated, and be held to comprehend only persons performing the same kind of service that is due from the others.”

In People v. Remington, 45 Hun, 331, which involved the consideration of the statute of 1885, it was held that the superintendent of the company, employed at an annual salary, and an attorney to whom the company was indebted for professional services, were not “employes, operatives, or laborers,” or their earnings “wages,” within the meaning of the statute. In the opinion in that case, which, upon this subject, was concurred in by all the members of the court, the meaning of the expression, “the wages of the employes, operatives, and laborers,” and the authorities upon the subject, were fully considered, and it was said that:

“This, like many similar statutes in this and other countries, was designed to-secure the prompt payment of the wages of persons who, as a class, are dependent upon their earnings for the support of themselves and their families; and it was not designed to give a preference to the salaries and compensation due to the officers and employes of corporations occupying superior positions of trust and profit.”

Force was given to the use of the term “wages;” it being said that it has a less extensive meaning, and embraces a smaller class of credits, than “earnings.” The case of Railroad Co. v. Falkner, 49 Ala. 115, was cited, in which it was said that the term “wages,” in its application to laborers and employes, “certainly conveys-the idea of a subordinate occupation, which is not very remunerative; one of not much independent responsibility, but, rather, subject to immediate supervision.” The Remington Case was affirmed by the court of appeals upon the opinion delivered at the general term. 109 N. Y. 631, 16 N. E. 680. In People v. Board of Police, 75 N. Y. 41, it is said by Judge Miller that “employes” are usually considered as embracing laborers and servants, and those occupying inferior positions. The case of Brown v. Fence Co., 52 Hun, 151, 5 N. Y. Supp. 95, is cited as sustaining the appellants’ position. There a person employed to assist the general manager of a corporation in keeping its books, and to clean the office and show room of the corporation, and to assist in putting together, taking apart, and shipping wire wicket fence and weaving machines, at the salary or wages of $40 a month, payable in four installments of $10 each, was held to be an employe, within the act of 1885. This does not, I think,- reach the present case.

Having in view the use in the statute of the term “wages,” and the rule of construction indicated in the case of Wakefield v. Fargo as to the kind of service designed to be covered by the terms “employes, operatives, and laborers,” and the principles laid down in the Wakefield and the Remington Cases with the apparent approval of the full court in each case, it should, I think, be here held that the claims of the appellants are not within the statute. The appellant Little was a clerk and bookkeeper in the office of the corporation at a salary of $100 a month, payable, under his contract of hiring, at the end of each month. Stebbins was a draughtsman employed in the office of the corporation at a salary of $125 a 'month, payable monthly. These are not of the grade of workmen designed to be protected by the act, and the fact that they took their orders from the officers or foremen of the corporation does not materially change the situation. Skinner was superintendent of the corporation. This is stated in the petition, and is not denied in the affidavit of Mr. Little, which states that he was employed as a foreman over the boiler, casting, erecting, and finishing departments, and it was his duty to direct the work of the men employed in said several departments. Williams was employed as a foreman, and his duties were of the same nature as those of Skinner. Each had a salary or wages of $125 a month, payable monthly. Hodgson was foreman of the boiler shop, at a salary of $225 a month, payable monthly. The statute does not reach this grade and kind of employment, and the fact that these men sometimes performed manual labor, along with the ordinary workman or alone, does not change materially the situation. It is very clear that they were not hired for that purpose. The inference is plain that whatever they did in that line was incidental to 'their general employment. In this respect, the case differs from the case of Short v. Medbury, above cited.

The claim of Deming, as stated in the petition of the receivers, was not at all for services, but for money loaned to one Smith, one of the employes of the corporation; . and, as such, there was no basis for preference. Deming, in his affidavit, states that in February, 1892, he purchased of Smith a claim that he had against the corporation for services, in the amount of $145. He does not state that he ever presented this claim to the receivers. There is no affidavit of Smith on the subject. Assuming, however, that Deming represents the claim of Smith, and that the facts as to it are as stated in the affidavit of Little, the claim for preference is not made out. Little states that on June 15, 1891, the. corporation made a contract with Smith, by which Smith was hired to go to Brazil, having in charge locomotives shipped to that place; that as a part of his duties he was to assist in the mechanical work of erecting and putting in order the machinery of the locomotives, on their arrival; that he was to receive for his wages $5 a day for each day that he was absent on his trip; and that there is now due and unpaid on the contract of hiring $145, for 29 days’ work The affidavit of Little is dated April 22, 1893. It does not state what time the claim accrued, nor does it state what the duties of Smith were. It gives a part, hut whether or not this was incidental to his main duties does not appear. The foregoing suggestions lead to an affirmance of the order. All concur.