In re Gurewitz

• Decision Date: 09 April 1903
• Docket Number: 168.
• Citation: 121 F. 982
• Parties: In re GUREWITZ.
• Court: U.S. Court of Appeals — Second Circuit

121 F. 982

In re GUREWITZ.

No. 168.

United States Court of Appeals, Second Circuit.

April 9, 1903

Emanuel Blumenstiel, for trustee.

L. Ed Miller, for claimant.

On petition, filed by the trustee of the above-named bankrupt to review an order of the District Court for the Southern District of New York, affirming a decision of the referee refusing to expunge the claim of Samuel Reitzen and holding that the said Reitzen is entitled to priority under section 64b(4) of the bankruptcy act (Act July 1, 1898, c. 541, 30 Stat. 563 (U.S. Comp. St. 1901, p. 3447)), his claim being for wages earned within three months before the date of the bankruptcy proceedings. The trustee maintains that Reitzen is not entitled to preference because he was paid by the piece namely at so much per garment, and that only those workmen are within the meaning of the act whose wages are measured and fixed by periods of time.

Before WALLACE, LACOMBE, and COXE, Circuit Judges.

COXE Circuit Judge.

The sole purpose of this review is to obtain an answer to the question whether or not so-called 'piece-workers' are entitled to priority under section 64b (4) of the bankruptcy act. Act July 1, 1898, c. 541, 30 Stat. 563 (U.S. Comp. St. 1901, p. 3447).

During the three weeks prior to the filing of the petition Reitzen worked for the bankrupt at the latter's place of business as a pieceworker and earned the sum of $42.16 which he insists is entitled to priority. The amounts due this class of workmen, as well as those working by the week, had always been paid weekly by the bankrupt.

The section in controversy, so far as it relates to the present question, is as follows:

'Sec. 64. Debts which have priority. * * * Wages due to workmen, clerks, or servants which have been earned within three months before the date of commencement of proceedings, not to exceed three hundred dollars to each claimant.' 30 Stat. 563 (U.S. Comp. St. 1901, p. 3447).

The legislative intent in the foregoing provision is manifest. It is to give a preference, limited in time and amount, to those employes of the bankrupt who work for wages. It surely could not have been the purpose of Congress to make the method of computation a criterion of priority. There is absolutely nothing in the language quoted upon which to base such an assumption. In order to secure priority under this subdivision the creditor must establish the following facts: First, that he was a workman, clerk or servant of the bankrupt. Second, that he earned wages within three months prior to the commencement of the proceedings.

There is nothing ambiguous about the use of the word 'wages' in this connection. It means the agreed compensation for services rendered by the workmen, clerks or servants of the bankrupt,-- those who have served him in a subordinate or menial capacity and who are supposed to be dependent upon their earnings for their present support. Whether their employer has agreed to pay them by the hour the day, the week, the month or by the 'job' or...