In re Mergentime, Inc.
| Decision Date | 02 May 1963 |
| Citation | 217 F. Supp. 887 |
| Parties | In the Matter of MERGENTIME, INC., Debtor. |
| Court | U.S. District Court — Southern District of New York |
Louis P. Rosenberg, Brooklyn, N. Y., for petitioner.
Ehrich, Stock, Valicenti, Leighton & Holland, New York City, for respondent.
This case turns upon the meaning of the word "earned" as used in Section 64a(2) of the Bankruptcy Act (11 U.S.C. § 104(a) (2)), i. e., whether vacation pay is earned at the same moment as the right to receive it accrues. The Referee's finding that the vacation pay was earned when the right accrued, i. e., at the end of the 125-day period specified in Section 10B of the collective bargaining agreement, is actually a conclusion of law or at most a finding of ultimate fact and is not such a finding as is binding upon this court unless clearly erroneous. United States v. Munro-Van Helms Company, Inc., 243 F.2d 10 (5th Cir., 1957).
The Referee's conclusion is supported by 3 Collier on Bankruptcy § 64.203 and by In re Kinney Aluminum Co., 78 F.Supp. 565 (S.D.Cal.1948). But In re Kinney Aluminum Co., supra, was apparently overruled, implicitly though not expressly, in Division of Labor Law Enforcement v. Sampsell, 172 F.2d 400 (9th Cir., 1949). The Referee's conclusion appears to be contrary to that reached in Division of Labor Law Enforcement v. Sampsell, supra, and in United States v. Munro-Van Helms Company, Inc., supra. I am unable to distinguish those cases as the Referee attempted to do. To my mind, it makes no difference whether the period at the end of which the employee's right to vacation pay accrues is one year, i. e., 365 days, as in Sampsell and Munro, supra, or 125 days, as here. In those cases, as in this one, the period ended within the three months prior to the filing of the petition. The court in those cases held that despite the fact that the employee's right accrued within the three-months' period, the entire vacation pay was not "earned" during that period.
Collier on Bankruptcy, supra, says that those decisions are wrong. In the absence of any pertinent authority in this circuit, however (and none has been cited by the Referee or the parties or discovered by the court), I feel that I should follow them. Accordingly, I hold that the vacation pay was not earned all at once when the right to payment accrued at the expiration of the 125 days, but was earned continuously over the entire 125-day period as the services were performed. This interpretation gives more...
To continue reading
Request your trial
-
IN RE LANSDALE TRANSP. CO., INC.
...Ledger, supra; In re Ko-Ed Tavern, Inc., 129 F.2d 806 (3d Cir. 1942); Strom v. Peikes, 123 F.2d 1003 (2d Cir. 1941); In re Mergentime, Inc., 217 F.Supp. 887 (S.D.N.Y.1963); In re Clinton Woolens, 113 F.Supp. 803 (D.Me.1952). In the instant case the benefits which are the subject of the empl......
-
In re Ad Service Engraving Company
...Helms Co., 243 F.2d 10, 13 (CA 5, 1957); Division of Labor Law Enforcement v. Sampsell, 172 F.2d 400 (CA 9, 1949); In re Mergentime, Inc., 217 F.Supp. 887 (S.D.N.Y.1963); see also Kavanas v. Mead, 171 F.2d 195, 198, 6 A.L.R.2d 645 (CA 4, 1948). Whatever factual differences may exist between......
-
United States v. 50 FOOT RIGHT OF WAY, ETC.
... ... R. Co., 3 Cir., 32 F. 9, United States v. Appalachian Power Co., 311 U.S. 377, 61 S.Ct. 291, 85 L.Ed. 243, and United States v. Commodore Park, Inc., 324 U.S. 386, 65 S.Ct. 803, 89 L.Ed. 1017 ... In United States v. Appalachian Power Co., supra, the court states, 311 U.S. at p ... ...
-
In re Big Horn Fastener Co., Inc., Bankruptcy No. 80 B 545 Mc.
...The employment contract required that employees work a continuous 125 day work period to earn their vacation pay in In re Mergentime, Inc., 217 F.Supp. 887 (S.D.N.Y. 1963). In comparing the amount of priority these employees were entitled to with prior cases such as In re Kinney Aluminum Co......