29 N.J. Eq. 252 | New York Court of Chancery | 1878
The petitioner puts his right to the relief he asks upon the sixty-third section of the act concerning corporations, which declares: “ Iri case of the insolvency of any corporation, the laborers in the employ thereof shall have a lien upon the assets thereof for the amount of wages due to them respectively, which shall be paid prior to any other debt or debts of said company; and the wox-d ‘laborers’ shall be constraed to include all persons doing labor or sex’vice of whatever character, for or as.workmen or employes in the regular employ of sxxch corporations.” (Rev. p. 188.) That pax't of the section which is remedial was first enacted as the forty-second section of the act authoriziixg the creation of corporations for manufactuxing and other pux’poses. Nix. Rig. (3d ed.) 497. The declaratoxy part was added in 1869 (R. L. 1869, p. 1448), and its principal desigxx seems to have
In Balch. v. N. Y. and Oswego R. R. Co., supra, it is said, “ the term laborer cannot be construed as designating one who contracts for and furnishes the labor and services of others, or one who contracts for and furnishes one or more teams for work, whether with or without his own services, or the services of others, to take charge of the teams while engaged in the service;” and Chief Justice Church, in Gurney v. Atlantic and Great Western Railway, supra, says, a •contractor is in no proper sense a servant, but in many respects an independent party. In popular understanding an employe is constantly subject to the direction of the employer; the employer has a right to require his employe to do anything within the scope of his employment, at such
It requires no argument to show that it is a matter of the first importance, not only to the public but to creditors, that a railroad should be kept in operation though its credit is so far impaired as to render it certain it cannot pay all its creditors in full. Even a temporary interruption or suspension of its business would be attended with the most disastrous consequences. As already stated, the preference given by this statute was intended as a guard against such a contingency. It does not rest on the nature of the debt, but grows out of the character of the creditor and the necessity of retaining him in the service of the corporation. I think it is very plain the legislature did • not intend to give a lien or preference for wages due for vicarious labor or service, or to confer upon one person the power to depute or delegate to himself the labor of many others, so that he can be an employe of a corporation to the extent of one hundred or one thousand men daily. Such a purpose would have been expressed by giving preference to the debt, as that ail debts due for labor or service should be a lien, and not to the creditor, as it now stands, that the employes in the employ of a corporation shall have a lien upon its assets for the wages due to them respectively. Besides, the contract of the petitioner appears to me to be a most extraordinary and unusual one. It devolved upon him all the’ duties and liabilities of a great public work in the receipt, loading and unloading and delivery of freight at a point where more freight was received and discharged, and a greater operating force was necessary than at any other on