
    MAYER v. STERN. In re WEIXELBAUM.
    (Supreme Court, Appellate Division, First Department.
    November 19, 1897.)
    Preferences—Employe’s Wages.
    It seems that a traveling salesman, who receives as compensation a percentage on sales made by him, is an “employé,” and entitled to a preference in respect to his wages, under Laws 1895, c. 899, § 1.
    Appeal from special term.
    Action by William M. Mayer against Edward M. Stern. Henry J, Weixelbaum petitioned to compel the receiver to pay his wages. From an order denying the application, he appeals. Reversed.
    Plaintiff and defendant had been co-partners in business. This action was brought for a dissolution of the firm, and a receiver was appointed. Petitioner alleged that he had been employed by the firm as a traveling salesman, under an agreement that he should ¡receive as wages 5 per cent, on all sales made by him, and that wages amounting to $125 were due and unpaid.
    Argued before VAN BRUNT, P. J., and BARRETT, RUMSEY, WILLIAMS, and PATTERSON, JJ.
    E. J. Myers, for appellant.
    H. Joseph, for respondent.
   PER CURIAM.

The case of Palmer v. Van Santvoord, 153 N. Y. 612, 47 N. E. 915, seems to hold that the appellant is an employé within the statute, and entitled to a preference in respect to his wages; and, as the motion below appears to have been disposed of entirely upon the assumption that the appellant was not entitled to such preference, we think the order should he reversed, with $10 costs and disbursements, and the matter remitted to the court below for a rehearing.  