45 N.Y.S. 354 | N.Y. App. Div. | 1897
Lead Opinion
From the statement contained in the Case as to the nature of the services performed by the respondent for the Walter A. Wood Mowing and Reaping Machine Company prior to the appointment of the appellants as its receivers, we think we must hold that he was an “employee, operative or laborer,” within the meaning of chapter 376, Laws of 1885.
His business was “ to set up machines and to take them do wn, and to fix the same when out of repair; to. go from place-to-place andfix and set up the machines of said company for farmers;' * * * to unpack the machines, and to repack them.” Although respondent was also employed to sell machines, as well as pack and unpack them, bolt them together, repair them, aiM do all the necessary • work, and put them in working order ■—giving the. language of the act above quoted a fair and -reasonable - construction — I think the respondent should be deemed an “ employee,- operative, or laborer ” within its provisions. (Brown v. A. B. C. Fence Co., 52 Hun, 151; People v. Beveridge Brewmg Co., 91 id. 313.)
The opinions in the cases cited give a satisfactory construction to the .act of 1885, and, -referring to them, we deem it unnecessary to. . enter into a discussion of the ease. '
The conclusion -we reach does not, we think, conflict with the doctrine stated in People v. Remington (45 Hun, 329), where the. claims for a preference under the act in question were made by the superintendent, and attorney of the. corporation. Nor were the Services rendered by the respondent for the Walter A. Wood Mowing and Reaping Machine Company similar to those of -the applicants.' whose claims were disallowed in The Matter of Stryker (73 Hun, 327). In that case, those applying for a preference under the act •in question were the bookkeepers, superintendent and foreman, paid
In this case, the services rendered by "Wilson E. Palmer for the Walter A. Wood Mowing and Reaping Machine Company were similar to those rendered by the" applicant whose claim for a preference under the act in question was allowed in Brown v. A. B. C. Fence Co. (supra).
We conclude that the order should be affirmed, with costs.
All concurred, except Merwin, J., dissenting.
Dissenting Opinion
The principle enunciated in People v. Remington (45 Hun, 329), and adopted by the Court of Appeals in its affirmance of the order in that case upon the opinion delivered at the General Term (109 N. Y. 631), is, I think, applicable to this case, and leads to the reversal of the order appealed from. It seems to me quite plain that the grade of service in the present case is not within the meaning of the statute as construed in the Remi/ngton case.
Order affirmed, with ten dollars costs and disbursements.
