Vincent v. Bamford

12 Abb. Pr. 252, 42 How. Pr. 109

Opinion

By the Court.

*—Feeedmah, J.

J, [After discussing certain exceptions to the admission of evidence which he held to be not well taken.]—This brings up the main question of law involved in the case, which is presented chiefly by the exceptions of the defendant taken to the refusal of the court to charge certain requests, namely, whether plaintiff, in the performance • of the services rendered, was or was not a servant within the true intent and meaning of section 18 of the statute referred to, which provides that the stockholders of any company organized under the provisions of said act, “shall be jointly and severally individually liable for all debts that may be due and owing to all their laborers, servants and apprentices for services performed for such corporation.” The cases cited by defendant in opposition to plaintiff’s claim upon this point, did not arise under the same, but under other and different statutes, for the passage of which, entirely different reasons may have existed. They have all been considered, and held inapplicable to a case of this kind, in Hovey v. Ten Broeck (3 Robt., 316), where it was decided by this court that the word “servant,” as used in the statute under consideration, cannot be confined to mere menial service. According to the testimony, plaintiff was employed to do, and did do everything he was told to do. He was a sort of engineer, a sort of foreman ; he showed the men how to work, and yet worked with them ; during the absence of the superintendent from the mines, he was made to act as such ; he sometimes kept the time of the men, and in fact did everything he was ordered to do, and everything that was necessary and possible for him to do. He is, therefore, clearly entitled to the application of the rule laid down in Hovey v. Ten Broeck {supra), unless, as it is claimed, that case has been reversed as an authority, upon the point stated, by the decision of the court of appeals in Coffin v. Reynolds (37 N. Y., 642). Upon examination, it will be found, however, that such is not the fact. The latter case simply decides that the secretary of a company organized under the act of 1848, being an officer thereof, and- belonging, as such, to a class of agents specifically mentioned in other sections of the statute, does not come within the designation of a laborer or servant, as used in section 18. This distinction is a marked and material one, and not in conflict, but in harmony with the views expressed by this court in Hovey v. Ten Broeck {supra). Williamson v. Wadsworth (49 Barb., 294), is another express authority under the statute in question, in plaintiff’s favor.

The judgment and order appealed from must be severally affirmed, with costs.

Present, Barbour, Ch. J., and Freedman and Spencer, JJ.