379 F.2d 211 (2nd Cir. 1967), 355, In re A & S Elec. Corp.

Docket Nº:355, 30992.
Citation:379 F.2d 211
Party Name:In the Matter of A & S ELECTRIC CORP., Bankrupt. Joint Industry Board of the Electrical Industry and Warren C. Schwartz,Trustee in Bankruptcy of A & S Electric Corp., Appellants.
Case Date:June 22, 1967
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 211

379 F.2d 211 (2nd Cir. 1967)

In the Matter of A & S ELECTRIC CORP., Bankrupt.

Joint Industry Board of the Electrical Industry and Warren C. Schwartz,Trustee in Bankruptcy of A & S Electric Corp., Appellants.

No. 355, 30992.

United States Court of Appeals, Second Circuit.

June 22, 1967

Argued April 11, 1967.

Warren C. Schwartz, Brooklyn, N.Y., Trustee in Bankruptcy for A & S. Electric Corp.

Harold Stern, New York City (Norman Rothfeld, New York City, on the brief), for Joint Industry Board of the Electrical Industry, appellant.

Howard M. Koff, Department of Justice, Washington, D.C. (Richard C. Pugh, Acting Asst. Atty. Gen., Lee A. Jackson and Joseph Kovner, Department of Justice, Washington, D.C., and Joseph

Page 212

P. Hoey, U.S. Atty. for Eastern District of New York, Brooklyn, N.Y., and Frank R. Natoli, Asst. U.S. Atty., Brooklyn, N.Y., on the brief), for the United States.

Before LUMBARD, Chief Judge, and SMITH and FEINBERG, Circuit Judges.

LUMBARD, Chief Judge:

The Joint Industry Board of the Electrical Industry, which administers an Annuity Plan funded by employer contributions under a collective bargaining agreement between Local Union No. 3, International Brotherhood of Electrical Workers, AFL-CIO, and four associations of electrical contractors in New York City, appeals from an order of Judge Rosling, affirming an order of Referee Warner in the Chapter XI proceeding of A & S Electric Corp. in the Eastern District of New York, denying priority status as 'wages * * * due to workmen' under section 64a(2) of the Bankruptcy Act, 70 Stat. 725 (1956), 11 U.S.C. § 104a(2), to the Joint Industry Board's claim for unpaid contributions of $5114 to the Annuity Plan. We agree with Judge Rosling that this claim must be denied a wage priority under the Supreme Court's decision in United States v. Embassy Restaurant, Inc., 359 U.S. 29, 79 S.Ct. 554, 3 L.Ed.2d 601 (1959), and we affirm his order.

The Annuity Plan of the Electrical Industry, as amended to July 1, 1964, requires each employer of workers represented by Local Union No. 3 to contribute $4.00 for each day's wages paid to each such worker. Each worker for whom such contributions are made becomes a Participant in the Plan, and he or his designated beneficiary is entitled to receive monthly payments of specified amounts, until the sums credited to his account are exhausted, upon his death, retirement from the industry at age sixty or over, permanent disability after working more than ten years for a contributing employer, or ceasing to be a Participant for any other reason. In addition, the beneficiary of a deceased Participant is entitled to death benefits out of the income of the Plan, if...

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