In re Smith

New York Supreme Court

In re Smith

59 N.Y.S. 799

DecidedAugust 12, 1899

StatusPublished

This text of 59 N.Y.S. 799 (In re Smith) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re Smith, 59 N.Y.S. 799 (N.Y. Super. Ct. 1899).

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Opinion

McADAM, J.

The petitioner was nothing more than an ordinary salesman, traveling and selling goods in a particular territory selected by the assignor, and his compensation consisted exclusively of commissions earned upon the sales he effected. It is conceded by the schedule of the assignee that the petitioner is entitled to $747.72, and this is the amount he claims. The only question is whether he is entitled to a preference over the general creditors of the assignor, under Laws 1897, c. 266, amending Laws 1877, c. 466, § 29. This act provides that “in all assignments made in pursuance of this act, the wages or salaries actually owing to the employés of the assignor or assignors at the time of the execution of the assignment shall be preferred before any other debt,” etc. See, also, chapter 624, Laws 1897. Under the construction placed by the courts upon this and similar acts, the petitioner is within the protection of the statute, and entitled to the preference claimed. In re Ginsburg, 27 Misc. Rep. 745, 59 N. Y. Supp. 656; Palmer v. Van Santvoord, 153 N. Y. 612, 47 N. E. 915; In re Heath, 46 Hun, 114; In re Sawyer (Com. Pl.) 29 N. Y. Supp. 1097. The word “employés” used in the statute has a wider significance than the words “laborers and operatives” used in certain other acts. Palmer v. Van Santvoord, supra; Gurney v. Railroad Co., 58 N. Y. 358; People v. Brewing Co., 91 Hun, 313, 36 N. Y. Supp. 525, disapproving In re Stryker, 73 Hun, 327, 26 N. Y. Supp. 209. And see, also, Brown v. Fence Co., 52 Hun, 151, 5 N. Y. Supp. 95. The property transferred is impressed with a trust in favor of the employés of the assignor the instant the assignment is executed and accepted, and it is the duty of the assignee to pay them [800]*800in preference to other creditors. Burley v. Hartson, 40 Hun, 121. There are ample assets to pay the claim without prejudice to others similarly situated, and the application for an order directing the assignee to pay must be granted, with $10 costs.

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McADAM, J.

The petitioner was nothing more than an ordinary salesman, traveling and selling goods in a particular territory selected by the assignor, and his compensation consisted exclusively of commissions earned upon the sales he effected. It is conceded by the schedule of the assignee that the petitioner is entitled to $747.72, and this is the amount he claims. The only question is whether he is entitled to a preference over the general creditors of the assignor, under Laws 1897, c. 266, amending Laws 1877, c. 466, § 29. This act provides that “in all assignments made in pursuance of this act, the wages or salaries actually owing to the employés of the assignor or assignors at the time of the execution of the assignment shall be preferred before any other debt,” etc. See, also, chapter 624, Laws 1897. Under the construction placed by the courts upon this and similar acts, the petitioner is within the protection of the statute, and entitled to the preference claimed. In re Ginsburg, 27 Misc. Rep. 745, 59 N. Y. Supp. 656; Palmer v. Van Santvoord, 153 N. Y. 612, 47 N. E. 915; In re Heath, 46 Hun, 114; In re Sawyer (Com. Pl.) 29 N. Y. Supp. 1097. The word “employés” used in the statute has a wider significance than the words “laborers and operatives” used in certain other acts. Palmer v. Van Santvoord, supra; Gurney v. Railroad Co., 58 N. Y. 358; People v. Brewing Co., 91 Hun, 313, 36 N. Y. Supp. 525, disapproving In re Stryker, 73 Hun, 327, 26 N. Y. Supp. 209. And see, also, Brown v. Fence Co., 52 Hun, 151, 5 N. Y. Supp. 95. The property transferred is impressed with a trust in favor of the employés of the assignor the instant the assignment is executed and accepted, and it is the duty of the assignee to pay them [800]*800in preference to other creditors. Burley v. Hartson, 40 Hun, 121. There are ample assets to pay the claim without prejudice to others similarly situated, and the application for an order directing the assignee to pay must be granted, with $10 costs.

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59 N.Y.S. 799, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-smith-nysupct-1899.

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