In re G. & G. Cigar Co., 131 Misc. 622

131 Misc. 622 | N.Y. Sup. Ct. | 1928

Delehanty, J.

The motion is denied. Petitioner delivered to the insolvent assignor $200 as security for the faithful performance of petitioner’s services while with the insolvent. The provision that the insolvent was to pay six per cent interest on the said sum negatives the present assertion of the petitioner that this money was to be kept, either actually or constructively, as a separate fund.

The case relied upon by both sides (Matter of Cavin v. Gleason, 105 N. Y. 256) is not in point, except in so far as it holds that a cestui que trust is not entitled to a preference merely by reason of the nature of his claim. There the fund was actually in trust. Here it is in the nature of a loan. I do not pass on the question of whether the petitioner may show later that he has a preferred claim. I merely deny his motion to compel the assignee to presently pay the full amount of his claim.