135 F.Supp. 827 (N.D.N.Y. 1955), 37103, In re Brassel

Docket Nº:37103.
Citation:135 F.Supp. 827
Party Name:In the Matter of Walter E. BRASSEL and Lillian I. Brassel, Individually and as co-partners, trading under the firm name of Brassels; and Walter E. Brassel, under firm name of Elgin Restaurant and Diner, Bankrupts.
Case Date:June 08, 1955
Court:United States District Courts, 2nd Circuit, Northern District of New York
 
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Page 827

135 F.Supp. 827 (N.D.N.Y. 1955)

In the Matter of Walter E. BRASSEL and Lillian I. Brassel, Individually and as co-partners, trading under the firm name of Brassels; and Walter E. Brassel, under firm name of Elgin Restaurant and Diner, Bankrupts.

No. 37103.

United States District Court, N.D. New York

June 8, 1955

Page 828

Ernest E. DeRosa, Utica, for Trustee.

Angelo N. Felice, Utica, for claimant.

BRENNAN, Chief Judge.

The sole question raised in this review involves the priority status in bankruptcy of a claim made against the bankrupt estates by the Trustees of a welfare fund.

The facts are not in dispute and are set forth in the decisions of the Referee of Oct. 1, 1954 and Mar. 29, 1955 and in his findings of Oct. 22, 1954 and Apr. 11, 1955. The two decisions and the two separate findings of the Referee are accounted for by the fact that the claim, as originally filed, embodied several items and on a previous review of the Referee's decision, this Court remanded the proceeding to the Referee for further action, especially as to the form of the claim and to receive any additional evidence that might be offered.

The underlying facts will be briefly referred to as a background for this decision.

On Jan. 22, 1954 the bankrupts filed a voluntary petition in bankruptcy in which they sought the relief afforded by the Act as to their individual and partnership liabilities. It is sufficient to say that they had been engaged in the conduct of two or more restaurants at the City of Utica, New York and for the purpose of the consideration of the claim, the liability of each of the bankrupt estates was not separately considered.

About October 1953 the bankrupts entered into collective bargaining agreements with Hotel and Restaurant Employees and Bartenders' Local No. 136 A.F. of L. of Utica, N.Y. which agreements were in effect on the date of the bankruptcy. Article IV, paragraph 6 is particularly pertinent to the present controversy and is quoted below:

'The Employer will contribute each and every week, commencing the first full week after the effective date of this agreement, 5% of the gross payroll for all employees covered by this agreement and transmit this sum to the Union Welfare Trust Fund no later than the 10th day of the following month, together with the names and Social Security numbers of the employees for whom the payments were made. These...

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