203 F. 583 | N.D.N.Y. | 1913
This court has recently passed on this question. In re Crown Point Brush Co. (D. C.) 200 Fed. 882. In that case In re Albert O. Brown & Co. (D. C.) 22 Am. Bankr. Rep. 496, 171 Fed. 281 was approved-See, also, In re Gurewitz, 10 Am. Bankr. Rep. 350, 121 Fed. 982, 58 C. C. A. 320.
It can make no material difference that Greenberger was carrying on this business as an individual. Cohen was neither a workman, clerk, traveling or city salesman, nor servant. The fact that, as incident to the performance of his duties as general manager of this store, he kept it clean and did some clerical duty does not change the character of his employment. He was not employed to do that work, but to manage the business, and he was paid for managing it, and not for performing such menial service as he did perform as incident to the management. The claim is for salary and for salary as manager, not for services as a clerk ox-' general workman and compensation as such.
The referee was right in holding that the claixn of Cohen could not be allowed as one entitled to priority. It would hardly do to hold that the general manager of the busirxess of a corporation or individual, employed and paid as such, becomes entitled to priority, for the reason he incidentally sweeps the floox-, dusts the counters, aixd assists in selling goods. Adopt this rule and general managers of a business woxxld be sxxre to do erxough menial work to bring themselves within the section of the bankruptcy act giving priority to workmen, clerks, salesmen, and servants.
"Q. AVhen you saw things were going to the had here, you thought you would ask him for it? A. I didn’t see until the last minute; didn’t pay any attention to it. Always had great confidence in Air. Greenberger.”
Then later:
“Q. But, you thought Ms affairs had gotten to a point: where he couldn't pay, and you thought you would get yours, if possible? A. Yes, sir.”
On his whole evidence I concur with the referee in the conclusion that Mr. Cohen did not understand the purport of some of these questions. So far as the evidence discloses, he had no reasonable cause to believe that Greenberger was insolvent, unable to pay his debts, and that in paying his (Cohen’s) lie intended a preference. It has been many times held that mere suspicion of insolvency is not sufficient. And the referee saw and heard Cohen when he gave his evidence, and was better able to arrive at a correct conclusion than is the court.
The order of the,referee, disallowing the claim as entitled to priority and allowing same as a general claim, is affirmed.