Palmer v. . Van Santvoord ( 1897 )

This case involves the intention and policy of the legislature when it sought to prefer "the wages of the employees, operatives and laborers" of insolvent corporations (Ch. 376, Laws of 1885). If the word "employee" is to be treated as the correlative of "employer" absolutely and without restriction, it then follows that the words "operatives and laborers" in the statute are mere surplusage and every person employed by a corporation on a salary is preferred.

In construing a statute force must be given to all its provisions if possible.

In the case at bar the use of the word "wages" is significant and restrictive and excludes fixed salaries which are not properly described as wages.

Furthermore, some effect must be given to the words "operatives" and "laborers," which follow the word "employee" in the statute.

I think they qualify the latter word and, taken in connection with the word "wages," limit its general meaning.

It is not every employee, in the broad, general sense, who is preferred, but the employee, operative or laborer who receives wages as such, whose services are menial or manual, and who depends upon his daily wage for present support.

In the case before us the employee received compensation at the rate of one hundred dollars a month from a mowing machine company.

It was his duty to go from place to place and sell or solicit sales of machines, to take them down, fix and set them up for the purchasers.

I am of opinion claimant was a traveling salesman on a salary, and only performed such duties as are common in the sale of machines or instruments of complicated design. This monthly salary is no more wages, as it seems to me, than the salary and commissions of the salesman sent to China by E. Remington Sons. (People v. Remington, 45 Hun, 329, 342; affirmed on opinion of the General Term, 109 N.Y. 631.)

The order appealed from should be reversed.

O'BRIEN, HAIGHT, MARTIN and VANN, JJ., concur with ANDREWS, Ch. J., for affirmance; BARTLETT, J., reads for reversal; GRAY, J., absent.

Order affirmed.