
    In re DUNN.
    (District Court, N. D. New York.
    September 29, 1910.)
    Bankbuptcy (§ 348)—Debts Entitled to Pbiobity—Sufficiency of Claim.
    A statement in a claim filed against the estate of a bankrupt that it is for “wages due deponent as clerk and manager and is a preferred claim” is not sufficient to entitle the claimant to priority of payment, in the absence of either statement or proof that such wages were earned within three months before the filing of the petition.
    [Ed. Note.—For other cases, see Bankruptcy, Dec. Dig. § 848.*]
    In the matter of John E. Dunn, bankrupt. On motion to vacate order of referee, and for allowance of claim as a preferred claim.
    Motion denied.
    
      Motion to vacate and set aside the. order of the referee allowing the trustee’s report and discharging him, and for an order requiring the referee and trustee to pay Louis- C. Peck, claimant, his claim of' $82.76 in full as a, preferred claim.
    A. L. Graff, for claimant.
    Lewis, Watkins & Titus, for trustee.
    F. J. De La Fleur (A. G. Senior, of. counsel), for referee.
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & llep’r Indexes
    
   RAY, District Judge.

The petition of Louis C. Peck states that by an order of the referpe the first meeting of creditors was directed to be called and held on the 16th day of October, 1908, and that a notice of such meeting was duly published, and that September 30, 1908, the “said referee mailed to each creditor a notice of said first meeting of creditors”; that such meeting was held October 16, 1908, and Clarence D. Stetson, Esq., was selected as trustee and his bond fixed at $1,500. December 22, 1908, said Peck filed his claim for $82.76.with the clerk of this court, alleging therein as follows:

“That the said J. F. Dunn, the person by "whom a petition for adjudication of bankruptcy has been filed, was at or before the filing of said petition, and still is, justly and truly indebted to said Louis O. Peck in the sum of eighty-two 76/100 dollars (82.76). That the consideration of said debt is as follows: Wages due deponent as clerk and manager" and is a preferred claim. That the date of maturity of said debt is about- August 24, 1968. That no note has been received nor judgment recovered therefor. That no part of said debt has been paid.- That there are no set-offs or counterclaims to the same. That said creditor had not, nor has any person by order of said creditor, or to the knowledge or belief of said deponent for the use of said creditor, received any manner of security for said debt whatever.”

There was no suggestion in such claim that it was for “wages due” to him as a clerk and manager which had “been earned within three months before the commencement of” (bankruptcy) “proceedings,” and on this motion no proof of that kind is produced or offered. The “wages due deponent as clerk and manager” may have been earned a year before or two years, and may have been earned while in the employ of some other person as affidavits presented in behalf of the trustee and referee indicate the fact was.

The statement, “and is a preferred claim,” is a mere conclusion, and not equivalent to a statement that he was clerk and manager for John F. Dunn or in his employ, or that the “wages” were “earned within three months before the date of the commencement of proceedings.” Section 64 of the bankruptcy act (Act July 1, 1898, c. 541, 30 Stat. 563 [U. Si.Comp. St. 1901, p. 3447]) tells what claims have priority,' and subdivision “b” says:

“The debts to have priority, except as herein provided, and tó be paid in full out of bankrupt’s estates, and the order of payment shall he, * * * (4) ■ wages due to workmen, clerks, traveling or city salesmen, or servants, which have been earned within three months' before the date of the commencement of proceedings, not to exceed three hundred dollars to each claimant,” etc.

Proof of claim must state facts which show the'claim to be entitled to preference or priority of payment. It is not sufficient to say in' the claim that the debt therein mentioned is “preferred” or a “preferred claim.” Even on this motion it- is not stated that Peck was in .the employ of Dunn in any capacity within the three months of the filing of the petition, or that the wages claimed were earned within such three months. July 5, 1910, the trustee filed his final account, and the final meeting of creditors was called for August 3, 1910, and notice given to this .claimant, Peck, in the manner prescribed by law. At that meeting the order of distribution, etc., was made. Peck did not appear.

As it was not made to appear to the trustee or referee or to this court, and has not on this motion been made to appear, that Peck had or has a claim against the estate of John F. Dunn entitled to priority of payment, and, so far as appears, the final dividend ordered was and is right and was mostly paid before this motion was made, and during the pendency of the proceedings Peck made no effort to ascertain whether his claim had been allowed as one entitled to priority, and as the facts shown by the trustee and referee establish that Peck was not in the employ of Dunn at the time of the commencement of the bankruptcy proceedings, and that the store where he was employed was owned and in the possession and being run or conducted by another person, the motion is denied.  