
    The People v. E. Remington & Sons, Resp’ts. In the Matter of Thomas Ringwood et al., App’lts.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed July 20, 1889.)
    
    Insolvent corporations—Preference to employees—Who are.
    Persons to whom a corporation furnishes room, power and stock, and agrees to pay a fixed price per piece for the work done, such persons-furnishing the labor and implements for the work and employing and discharging their own laborers are not employees, operatives or laborers of such corporation, and the sums due them are not wages within chapter 3i 6, Laws of 1885, giving a preference to such wages.
    
      A. M.'Mills, for petitioners; Thomas Richardson, for receiver; John W. Hogan, for attorney-general.
   Martin, J.

The petitioners, by this proceeding, sought to obtain a determination of the court that their several claims against the defendant were preferred, and procure an order that they should be paid in full by the receivers of the defendant. This application was based on the claim that the petitioners were employees, operatives and laborers of the defendant, and that the several sums due them was for wages within the intent and meaning of chapter 376 of the Laws of 1885, an act to provide for the payment of wages to employees, operatives and laborers of domestic corporations, other than insurance or monied corporations, of which a receiver should be appointed.

The special term held that the petitioners were not such employees, operatives or laborers, and that the sums due them were not for wages within the meaning of such statute, and, therefore, that they were not entitled to the relief sought. The correctness of this decision is challenged by the petitioners, and presents the only question involved on this appeal.

T te evidence taken in this proceeding, shows that the petitioners had entered into an arrangement with the defendant, whereby it furnished them room, power, machinery and stock, and they furnished the labor employed in the manufacture of parts of machines and implements manufactored by the defendant; that in each case the petitioner employed others to assist him in the performance of such labor, and, in most cases, the petitioner personally performed but a small portion of the labor for which his claim is made; that the men thus employed were hired, discharged and paid by the petitioners, the rate of the wages or the price per piece that they were to be paid, the time of their service, the particular kind of labor at which they were to be employed, were all determined by and between each petitioner and his employees; that the petitioners, or the men in their employ, furnished emery, files, tools and oil used by them; that the defendant was to pay the petitioners a fixed price for the parts of the machines or implements so made, the amount of which was credited to the petitioners on the defendant’s books each month; that such credits included the whole work performed, as well that performed by the men thus employed as that performed by the petitioners themselves; that the petitioners received as a compensation or profit the difference between the sum paid by the defendant and that paid their men; that in some cases the petitioners paid their men by the day or hour, and in others by the piece; that sometimes the petitioners and sometimes their men worked for the defendant at irregular or unusual work by the day, and were given credit for such work with the credit given them for the work done by the piece; that the defendant established certain general rules for the government of all persons engaged at work in its shop, whether in the employ of the defendant or in the employ of jobbers or contractors; and that the business of the defendant was managed by its officers and agents.

Under these facts we do not deem it necessary to examine the questions that were so fully and ably discussed by-counsel on the argument, as the question involved cannot, we think, he regarded as an open question in this court.

In the case of The People v. Remington (45 Hun, 329, 339; 10 N. Y. State Rep., 310), a similar question was involved. One of the claims presented in that case was the claim of John Y. Schmidt, who entered into an agreement with the defendant by which the defendant agreed to furnish room, power, machines and stock to Schmidt, who agreed to furnish the labor in manufacturing parts of machines and implements manufactured by such corporation. He employed, paid and discharged the men engaged on this work, and furnished emery, files, oil and tools used by the men in doing the work, the corporation agreeing to pay him a fixed price for the parts of the machines and implements made. There was due him on account of such agreement upwards of $500 which had accrued since the passage of the act of 1885, and remained unpaid. In that case this court held, that Schmidt was not entitled to the preference provided for by the statute.

We are unable to discover any such essential difference between the facts in the Schmidt dose, and the facts disclosed by the evidence in this, as would justify us in holding that the petitioners were entitled to the relief sought. We are of the opinion that the principle of the decision in Schmidt’s Case is controlling in this, and that the order appealed from should be affirmed.

Order affirmed, with costs.

Merwin and Churchill, JJ., concur.  