
    In the Matter of Sawyer, Wallace & Company. In the Matter of Gustave Muller.
    
      (New York Common Pleas, Special Term,
    
    
      Filed May 15, 1894.)
    
    Assiusmeut tor creditors—Wageis—Preference.
    Where a contract provided that an employe should receive a certain salary and a percentage of the profits of the business, if they should amount to a certain sum for Ihe year, but the employer, before the year expired and the specified amount of profits were realized, terminated the contract of employment, the employe is entitled to a preference for the percentage of the profits, as for wages due.
    
      Motion to confirm the referee’s report.
    The claimant, Gustave Muller, had. been for upwards of five years, and was at the time of the execution of the assignment, an employe of the assignors. His employment since May 1, 1890, had been under a written contract, which provided that he should continue in charge of what was known as the “ Petroleum Department ” of the assignors’ business for one year from May 1, 1890, and should receive a salary of five thousand dollars per annum, and additional compensation equal to 7-|- per cent, on the net profits of the business in his charge, provided such net profits amounted to not less than $20,000 for the year. There was no provision for payment by installments, but the contract was entire,—for one year’s services for the stipulated compensation. On September 4, 1890, the assignors failed, and made a general assignment for the benefit of their creditors. The net profits made by Muller up to that date on all business in his charge, then wholly completed and closed, amounted to $10,628.87. All transactions then entered upon, but unclosed, were included in a separate arrangement made by Muller with the assignee, whereby he went on and completed them as the employe of the assignee, and they were eliminated from the account of Muller with the assignors. Muller thereupon presented to the assignee his claim for a balance of salary unpaid at the date of the assignment, as a preferred claim rejected for that reason. The claim was tried before John Yard, Esq.,-—a referee appointed to hear and determine disputed claims; and he found that the account of Muller with the assignors, at the time of the execution of the assignment, stood as follows:
    Guaranteed salary, at the rate of $5,000 per annum, for four months and four days, from May 1,1890,
    to September 4, 1890,........................ $1,721 41
    Contingent salary on profits realized up to September 4, 1890, being equal to 7-|* per cent, on $10,628.87.................................. 797 16
    Making a total of guaranteed and contingent salary,
    at the date of said assignment, of............... $2,518 57
    That of this amount there had been paid to and received by said Muller, prior to the date of said assignment.................................. 1,860 39
    Leaving a balance unpaid at the date of said assignment of..................................... $658 18
    The referee found that Muller had a valid claim against the assigned estate for $658.18, but that it was not a preferred claim, nnder the statute, for the reason that it was not actually owing at the time of the execution of the assignment. Exceptions were filed on behalf of Muller, and a motion was made on behalf of the assignee to confirm the report, and overrule the exceptions.
    
      
      Cardozo & Nathan (Edgar J. Nathan, of counsel), for assignee; Eugene Frayer, on behalf of the claimant.
   Pryor, J.

—Obviously, the percentage of profits was as essentially a portion of Muller’s “wages” or “salary” as the $5,000. Ol' this percentage, the referee finds that, at the date of the assignment, Muller had earned $658.18. By the act of the assignors in terminating the contract, they prevented the contingency which might have made Muller’s percentage more or less, or nothing, and fixed it at this sum. By the act of the assignors in terminating the contract, which would have postponed payment till the end of the year, this sum instantly became due and payable, and is recoverable by action, with interest from the date of the assignment. In ever sense of the word, it was actually owing to Muller. The statute is “a beneficent as well as a remedial' provision, and should be liberally construed, so as to meet a wrong and advance the remedy which the legislature had in mind.” In re Heath, 46 Hun, 114; 11 St Rep. 627. Motion denied, with costs.  