
    Matter of the Assignment of John J. Jacobs.
    (Supreme Court, New York Special Term,
    June, 1899.)
    Assignment for benefit of creditors — Payment refused of a preferred claim for services rendered before the assignment.
    A motion, to compel a general assignee to make a preferred payment (Laws of 1897, chap. 624, § 29), of a claim for services rendered to the assignor previous to the assignment, will be denied as prematurely made, where an action is pending to set aside the assignment and it does not appear whether the services were rendered within a" year of it, nor whether the assignee has funds enough to pay in full all preferred claims of the nature of the one in question.
    Motion to compel assignee to pay an alleged preferred claim for services rendered to assignor.
    Guggenheimer, Untermyer & Marshall, for motion.
    R. H. Griffin, opposed.
   Gildersleeve, J.

This is a motion to compel an assignee for the benefit of creditors to pay a claim for services rendered to the assignor previous to the assignment, on the ground that it is a preferred claim under section 29 of the General Assignment .Act. Laws of 1897, chap. 624. It appears, however, that some question has been raised as to whether the claim in question is of a nature to bring it within the provision of the act referred to, which is as follows, viz.: “ In all distribution of assets under all assignments made in pursuance of this act, the wages or salaries actually owing to "the employes of the assignor or assignors at the time of the execution of the assignment for services rendered within one year prior to the execution of such assignment, shall be preferred before any other debt; and should the assets of the assignor or assignors not be sufficient to pay in full all the claims preferred, pursuant to this section, they shall be applied to the payment of the same pro rata to the amount of each such claim.” It further appears that an action is pending to set aside the assignment. The assignee requests that this motion be postponed until the determination of this action. It does not appear from the papers on this motion whether or not there is sufficient money in the assignee’s hands to pay all the preferred claims of this kind, so that it is not possible to say, even assuming' that the claim in question is entitled to the preference demanded, whether it should be paid pro rata or in full. The motion is that it be paid in full. Eor does it appear whether or not the alleged services were rendered within one year prior to the execution óf the assignment. Without passing upon the merits of the claim, it séems to me that the moving papers are insufficient, and also that the application is premature.

Motion denied; no costs.  