Gay v. Hudson River Electric Power Co.

• Decision Date: 19 March 1910
• Citation: 178 F. 499
• Parties: GAY et al. v. HUDSON RIVER ELECTRIC POWER CO. et al. SAME v. HUDSON RIVER ELECTRIC POWER CO.
• Court: U.S. District Court — Northern District of New York

178 F. 499

GAY et al. v. HUDSON RIVER ELECTRIC POWER CO. et al.

SAME v. HUDSON RIVER ELECTRIC POWER CO.

United States Circuit Court, N.D. New York.

March 19, 1910

Jenkins Kellogg & Barker, for petitioner.

Abram J. Rose and George B. Curtiss, for receivers.

Davies Stone & Auerbach, for Knickerbocker Trust Co.

RAY District Judge.

The bill of complaint was filed and the receivers appointed the latter part of October and first days of November, 1908. The Hudson River Electric Power Company was organized and incorporated under the general transportation laws of the state of New York and was doing business in the state of New York in generating, transporting, and delivering electrical power and energy and light. For the purpose of enlarging its sphere of action and increasing its water power and electrical plants, it sought to secure options for the purchase of certain lands or water rights in the Sacandaga Valley, N.Y.

This company engaged or employed the petitioner, Calhoun S Enches, to assist in soliciting and obtaining these options of the various landowners, and he performed services in so doing at various times between February, 1906, and June 1908, and rendered bills, or some bills, and was paid at the rate of $10 per day and expenses. The services performed at this rate aggregated $5,560, and his expenses were $1,522.66, making $7,082.66. He was paid on account, some bills in full, $5,477.81, leaving $1,604.85 due and unpaid when the receivers were appointed.

It is very clear, and I find, that Mr. Enches was to be paid his expenses and $10 per day for his services. There was no express agreement to that effect; but it is implied from the fact that he was employed, rendered bills or statements, and was paid at that rate without objection.

Mr. Enches is, and then was, an attorney and counselor at law, but he was not employed in his professional capacity and did not work for the company in that capacity, or perform services of the kind or nature usually performed by attorneys and counselors at law. It was no part of his duty to prepare legal papers. The company had two or three other persons employed in the same work who were not attorneys or counselors. Mr. Enches was not employed or hired by the week, month, or year, and was not working for or drawing a salary. In fact, he was working by the day in the work he was doing for the company.

It was not a menial or degrading service, but he did the work to earn money to support himself. He was not a clerk and performed no clerical service; he was not an overseer, or foreman or superintendent; nor was he an officer of the company. He was an 'employe,' for the reason he was employed by the company to do work for it at an understood daily compensation and he did the work he was employed to do. The work he did with his hands was to figure and make memorandums, and he examined the properties and went from place to place. He, of course, talked and exercised his mental faculties in bargaining for or negotiating options. However, it does not follow that Mr. Enches was an 'employe' as defined in the statute referred to, and which is entitled 'An act in relation to labor, constituting chapter 32 of the General Laws,' approved May 13, 1897, and being chapter 415 of the Laws of New York of 1897.

Section 8 of the act reads as follows:

'Sec. 8. Payment of wages by receivers. Upon the appointment of a receiver of a partnership or of a corporation organized under the laws of this state and doing business therein, other than a moneyed corporation, the wages of the employes of such partnership or corporation shall be preferred to every other debt or claim.'

Section 2 of the act defines certain words used in the act, and, so far as material, reads as follows:

'Sec. 2. Definitions. The term, employe, when used in this chapter, means a mechanic, workingman or laborer who works for another for hire.

'The person employing any such mechanic, workingman or laborer, whether the owner, proprietor, agent, superintendent, foreman or other subordinate, is designed in this chapter as an employer.'

Enches was not a mechanic. Was he a 'workingman or laborer' as generally understood, for so we must construe this statute, that is, within the meaning of this statute? The Century Dictionary defines the word 'workingman' as follows:

'A laboring man; one who earns his living by manual labor.'

And 'workman' as:

'(1) A man who is employed in manual labor, whether skilled or unskilled; a toiler; specifically an artificer, mechanic, or artisan; a handicraftsman. (2) In general, one who works in any department of physical or mental labor; specifically, a worker considered with special reference to his manner of or skill in work-- that is, workmanship.'

That dictionary defines the word 'laborer' as follows:

'One who labors or works with body or mind, or both; specifically, one who is engaged in some toilsome physical occupation; in a more restricted sense one who performs work which requires little skill or special training as distinguished from a skilled workman; in the narrowest sense, such an unskilled workman engaged in labor other than that of a domestic servant, particularly in husbandry.'

The act of 1885 (chapter 376), which preceded this, read:

'Where a receiver of a corporation created or organized under the laws of this state and doing business therein * * * shall be appointed, the wages of the employes, operatives and laborers thereof shall be preferred to every other debt or claim against such corporation, and shall be paid by the receiver from the moneys of such corporation which shall first come to his hands.' Here the statute specifically states that 'the wages' of a certain class of employes shall be preferred.

This section (section 1, c. 376, Laws 1885) was under consideration by the Court of Appeals of the state of New York, its highest court, in Matter of Stryker, 158 N.Y. 526, 53 N.E. 525, 70 Am.St.Rep. 489, and the court held that the general and comprehensive word 'employes' must be limited by the more specific words 'operatives and laborers,' and that the statute was intended to limit the preference to the particular class whose claims would be properly expressed by the word 'wages' as commonly applied to the payment for manual labor, or other labor of menial or mechanical kind as distinguished from salary and from fee, which denote compensation paid to professional men. Also, that the word 'wages' in that statute, in its application to laborers and employes, conveys the idea of subordinate occupation, which is not very remunerative; and the statute was not designed to give a preference to the salaries and compensation due to officers and employes occupying positions of trust or profit. So it was held by that court, in 1899, that a clerk and bookkeeper of a manufacturing corporation, and the superintendent, shop foreman, and a draftsman, who had been employed at salaries ranging from $100 to $225 a month, were not entitled to a preference under that act. As to the word 'wages,' the court said:

'The most important word in the statute is the word 'wages.' It was wages that the Legislature intended to prefer in the distribution of the assets of the insolvent corporation, not salaries, nor earnings, nor compensation. It was not intended to prefer the claims of all employes, but it was manifestly intended to limit the preference to the particular class whose claims would be properly expressed by the use of the word wages. This word is applied in common parlance specifically to the payment made for manual labor, or other labor of menial or mechanical kind, as distinguished from salary and from fee, which denotes compensation paid to professional men. Century Dictionary. In its application to laborers and employes it conveys the idea of subordinate occupation which is not very remunerative, of not much independent responsibility, but rather subject to immediate supervision.'

There the words were 'employes, operatives, and laborers,' while here the word is 'employes,' meaning 'mechanic, workingman, or laborer.' There, as here, it was 'wages' that are to be preferred and paid. Enches did not work by the week, month, or year; neither did he work on or receive a salary. He was better paid than were the clerk, bookkeeper, superintendent, and draftsman in the Stryker Case. However, I do not agree with the argument that a large compensation is not 'wages,' or that the amount earned and paid has anything to do with determining whether or not a person is paid 'wages' for his work performed. What the Century Dictionary actually says is:

'(1) A gage; a pledge, a stake. * * *

'(2) That which is paid for a service rendered; what is paid for labor; hire; now usually in the plural. Sometimes the plural form is used as a singular. In common use the word wages is applied specifically to the payment made for manual labor or other labor of a menial or mechanical kind; distinguished (but somewhat vaguely) from salary (which see), and from fee, which denotes compensation paid to professional men, as lawyers and physicians.' This means that 'wages' are what is paid for services rendered, even if both physical and mental, as distinguished from a fixed salary, and as distinguished from compensation paid in the professional employments for professional work.

In the statute under consideration the section is to be construed as though it read 'the wages of the mechanics, workingmen or laborers in the employment of such partnership or corporation shall be preferred to every other debt or claim. ' Was Enches a 'workingman' or 'laborer' within the meaning of the statute? He worked and he labored in a sense. There are many decisions of the courts bearing on the subject, but ...