
    William D. Sprague, Appellant, v. Tangier’s Development Company, Respondent.
    
      Practice — calendar practice—preference — action for work, labor and services.
    
    Appeal by the plaintiff from an order of the Supreme Court, entered in the office of the clerk of the county of Kings on the 14th day of March, 1913.
    Order reversed, without costs, and motion for preference granted. No opinion. Jenks, P. J., Thomas, Carr and Woodward, JJ., concurred; Hirschberg, J., read for affirmance.
   Hirschberg, J. (dissenting):

I cannot concur in the decision which my learned associates are making in this case. The appeal is from an order made at the Trial Term of the Supreme Court in the county of Kings, denying the plaintiff’s motion to advance the case as preferred to the day calendar for the 8th day of April, 1913. The action was at issue in November, 1911, and the motion was made under the Kings county calender rule 10, which provides for a preference in actions brought to recover “ for work, labor and services.” I am averse to unnecessary interference with the disposition of the calendars by the trial justices, and I think that where any interference is made it should be limited to cases in which the trial justice is unquestionably wrong. As he was clearly right in the present instance I do not think he should be hampered by our interference. The reason for the giving of preferences to actions brought to recover for work, labor and services is obvious. While the services "need not be manual, or the work menial or laborious, in the ordinary sense, the object of the preference is to give a speedy trial to those who otherwise might be deprived, for a long period, of money needed for their daily sustenance. It is the individual who is receiving either wages or a salary for his work, whether physical or mental, who is protected by the rule in question. It is the daily worker, as such, the man who is dependent on the stipulated stipend, whether by the day, week or month, for his support, who is protected by the rule, and who because of the needs of his position is enabled by the preference to try his case sooner than he would otherwise be able to do, thereby shortening the period of delay which would deprive him of his accustomed pay. As was pointed out by Mr. Justice Putnam, in denying a similar motion in the case of St. John v. Kloppenberg (N. Y. L. J., Oct. 35, 1911), the provision under consideration was inserted in rule 10 in place of the former rule preferring “any action on contract,” thereby limiting the preference to claims of ordinary employees in analogy to the corresponding rule of preference in the First Department, viz., calendar rule 5, relating to “wages, salary or compensation for services.” In the ease at bar the action is brought to recover a balance claimed to be due to the plaintiff under a contract with the defendant, by which the plaintiff was to sell for the defendant certain lots and plots of real estate on Long Island from time to time, and certain bonds, at the agreed compensation of a commission of ten per cent of the net purchase price, the first payment on each purchase apparently being twenty per cent of the purchase price, and the plaintiff to be paid by receiving one-half of the first moneys received on each sale. The contract was carried out at various times during the period intervening the month of September, 1910, and the 13th day of June, 1911, during which time the plaintiff claims to have sold a large number of lots and plots of real estate and also a large number of bonds. He alleges that his agreed commissions amounted to the sum of $9,980, of which only the sum of $2,435 has been paid, leaving due and owing the balance of $7,525, to recover which the suit is brought. Although the plaintiff alleges in his affidavit accompanying the motion papers that he worked during that period exclusively for the defendant and in the office of the defendant, I think the nature of his claim as a real estáte and bond broker, together with the large amount involved, the numerous items of .the claim and the long period of time during which the account was permitted to run, suggesting the possibility of a trial by reference, suffice to remove the case from the class of wage earners for whose protection the rule in question is designed. There is, however, an additional reason and, to my mind, a conclusive one why the learned justice at the Trial Term was right in denying the application for the preference. By the very express terms of the plaintiff’s contract he was to receive nothing for his work, labor and services. He was to be paid for results, and results only. In other words, it was the fruition of his labor, and not the endeavor, which was to be compensated; In a strict sense, he was not to be paid by the defendant at all, excepting in the sense that he was entitled under the contract to one-half of each specific first payment made on a sale, and the defendant agreed to give him that specific money.’ He was to receive a limited pro rata share of a joint enterprise in character, although not in extent, like a share in the profits of a partnership. But for his labor, as such, he was to receive nothing. In this respect he differs materially and substantially from the salesman who is to be paid for his work in a store whether or not he succeeds in making sales. In the case at bar the plaintiff, though he might work day and night week after week to sell a plot of ground of small value, if he failed to make the salé, would receive nothing for his long period of work, labor and services; on the other hand, if he succeeded in making a sale of a valuable piece of property in a short time, he would receive a large sum of money out of the purchase price, this because his pay was based exclusively upon the result, and was not to be measured by the labor involved, the amount of work devoted to it or the extent of the services required. In view of these undisputed facts, it is a very strange and distorted construction of Ms contract to say that he is suing for wages as such, or for compensation based upon and designed to remunerate him specifically for his work,' labor and services. The precise nature of the plamtiff’s cause of action as stated in the complamt is very clear. It is for money had and received. The defendant has received the money which it was to give to the plaintiff for his commissions. It is conceded that the money has been demanded and payment refused. It has, therefore, been converted by the defendant, and with the insertion of an appropriate allegation to that effect in the complaint the action would be in tort for such conversion. I vote to affirm. 
      
      See Rules for Regulation of Trial Terms of Supreme Court, First Judicial District, etc., rule 5."—[Rep.
     