New York County NyArchives Court.....Brown, Christopher Vs. A B C Fence Co 1889
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Source: Reports Of Cases - New York
Written: 1889

First Department, March Term, 1889.

CHRISTOPHER A. BROWN v. THE A. B. C. FENCE COMPANY.

Employee of a corporation — who is, under chapter 376 of 1885.

A person employed to assist the general manager of a corporation in keeping its 
books and to clean the office and show-room of the corporation, and to assist in 
putting together, taking apart and shipping wire wicket-fence and weaving 
machines, is an employee within the meaning of chapter 376 of the Laws of 1885.

Krauser v. Ruckel (17 Hun, 467); Dean v. De Wolf (16 id., 186); Hill v. Spencer 
(61 N. Y., 274); Wakefield v. Fargo (90 id., 213) distinguished; Gurney v. 
Atlantic, etc., Railroad Company (58 id., 358) followed.

Under the provisions of that act it is the duty of the receiver of a 
corporation, created under the laws of this State, to pay from the moneys that 
shall first come into his hands the wages of such employee.

Appeal by Edward Cundell, one of the judgment-creditors of the above-named 
defendant, from an order made at a Special Term of the Supreme Court, and 
entered in the office of the clerk of the county of New York on the 17th day of 
November, 1888, denying a motion of said Cundell that the receiver of said 
defendant be directed to pay said Cundell's claim in full under the provisions 
of chapter 376 of the Laws of 1885 providing for the payment of the wages of 
employees.

James M. Baldwin, for the appellant Cundell, a creditor.

Thomas Darlington, for the receiver respondent.

Daniels, J.:

By the two affidavits made in support of the motion, it appeared that the 
appellant had been employed to assist the general manager of the company in 
keeping its books and to clean the office and show-room of the company, and 
assist in putting together, taking apart and shipping the wire wicket-fence and 
weaving machines, at the salary or wages of forty dollars a month, payable in 
four installments of ten dollars each, and that these services had been 
performed by the appellant until there became due to him therefor the sum of 
$325.97.

In the affidavit of the president of the company, used to oppose the motion, it 
was stated that the services rendered by the appellant were those of a 
bookkeeper and general clerk. But from the other affidavits it may reasonably be 
inferred that the applicant was employed in the manner substantially stated by 
himself and rendered the services which he has mentioned. But in that respect 
the difference between his own affidavit and that of the manager of the business 
and the affidavit of the president is not very important. For by the affidavit 
of the latter he appears to have rendered some services in addition to those of 
bookkeeper and general clerk. The court, after hearing the motion, denied it 
without drawing any distinction or difference between the statements of these 
three affidavits. And whether the denial is supported by the law depends more 
upon the construction which is to be given to chapter 376 of the Laws of 1885 
than on a critical construction of the affidavits. This chapter has declared 
that the receiver of a corporation created or organized under the laws of this 
State, and doing business here other than insurance, and than that of moneyed 
corporations, shall prefer and pay from the moneys which shall first come into 
his hands, the wages of the employees, operatives and laborers thereof. The 
application for this payment, made on behalf of the appellant, seems to have 
been denied, on the ground that his case was not brought within this statute, 
and authorities have been cited which were considered by the counsel to sustain 
this construction. But these cases are all distinguishable from that of this 
appellant.

For in Krauser v. Ruckel (17 Hun, 467) the action was to enforce payment from 
the stockholders of a mining company, and its successful prosecution depended 
upon the ability of the plaintiff to prove himself to have been a laborer, 
servant or operative of the company; that he failed to do, for the reason that 
his position was that of general superintendent. The case of Dean v. De Wolf (16 
Hun, 186), was that of an assistant of the general superintendent of the 
company, who was employed at a fixed salary of $700 a month, and it failed of 
success for the like reason; that he was not a servant or laborer within the 
meaning of the statute rendering stockholders liable for their wages. Hill v. 
Spencer (61 N. Y. 274) was a like action brought by a party who was the agent of 
the company employed to take charge of its mines in another country. The case of 
Wakefield v. Fargo (90 N. Y., 213) was to enforce a like liability, and the 
court held that a bookkeeper and general manager was not within the protection 
of the language used in the statute creating this liability of stockholders. 
These cases all arose under an entirely different statute, more limited in its 
language than the act under which this application has been made. For this act 
not only includes operatives and laborers, but also employees, which latter term 
is of broader signification in its general acceptance, and includes all persons 
employed, but restricted, as it should be, to the general description of persons 
who may be designated as laborers, operatives and employees. The statute, as so 
restricted, appears to be broad enough to include the case of this applicant, 
and it is not controlled by anything which was decided in People v. Remington 
(45 Hun, 329), where the claims which were rejected were made in behalf of the 
superintendent and attorney of the company, who were higher in their grade of 
services then the persons described by this language of the statute.

The signification of the term "employee" was considered in Gurney v. Atlantic, 
etc., Railway Company (58 N. Y., 358). There it had been used in an order 
declaring it to be the duty of the receiver of the company to pay arrearages 
owing to the laborers and employees of the corporation for labor and services 
actually done in connection with the company's railways. Under this phraseology 
a claim was made for the sum of $5,000 for the services of counsel, and it was 
held by the court that he was entitled to be paid by the receiver under this 
general language. The court there probably gave the term, then standing by 
itself, a broader signification than it would be inclined to place upon it, as 
it has been used in this statute; for it was said that "none are excluded in 
terms or by implication, and all who came within the description are entitled to 
the benefit of the order. In the absence of any intent, apparent on the face of 
the order, to discriminate between different classes of employees or different 
kinds of service," the court cannot confine it to a particular class or to a 
particular service. The term "employee" is the correlative of "employer," and no 
other term has, either technically or in general use, a restricted meaning by 
which any particular employment or service is indicated. (Id., 471.)

Under this construction of the language the applicant would be clearly entitled 
to the order for which he applied, and so he seems to have been even if a more 
limited effect shall be given to the words which have been employed in the 
enactment of the statute than was placed upon this word in that order. For an 
assistant bookkeeper, a part of whose duty it was to render the other services 
for which the applicant was employed, and which were performed by him, will 
fairly be included as an employee within the description of persons to be in 
this manner paid by the receiver under the enactment of this statute.

The order should be reversed, with ten dollars costs and also the disbursements, 
and an order entered directing the receiver to pay to the applicant the sum 
owing to him for his services, excluding, of course, the additions made to it by 
the judgment he is stated to have recovered.

Van Brunt, P. J., and Brady, J., concurred.

Order reversed, with ten dollars costs and disbursements.

Additional Comments:
Reports of Cases Heard and Determined in the Supreme Court of the State of New 
York. Marcus T. Hun, Reporter. Volume LIX, 1889, HUN 52. Banks & Company, 
Albany, NY. 1901.

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