BRADY v. McCANN; SAME v. EDWARDS. In re SUPERIOR SERVICE COAL & COKE CO., 8 F.2d 928

PER CURIAM. From these agreed statements of facts it clearly appears that each of these claimants, while clothed with some discretion in the performance of his respective duties, nevertheless occupied a subordinate position and was under the control and direction of tho general manager. For this reason wo think the services perfoi*mod by each of these claimants comes clearly within the provisions of

section 64b (4) of the Bankruptcy Act (Comp. St. § 9648), and, nothing else appearing, they would each he entitled to priority in tho sum of $300 for salary and wages earned within the three months next preceding tho filing of the petition in bankruptcy. Brainerd v. Irwin et al. (C. C. A.) 291 F. 759, 761; Blessing v. Blanchard et al., 223 F. 35, 37, 138 C. C. A. 399, Ann. Cas. 1916B, 341; In re Dexter, 158 F. 788, 89 C. C. A. 285.

Nor do we think that the mere fact that these men wore stockholders and directors of the bankrupt corporation is a sufficient reason to deny them priority for wages actually earned by them in these subordinate positions wholly separate and apart from their duties as directors for which they received no compensation. In re Cost Cut Counterbore Co. (D. C.) 283 F. 670; In re Capital Paint Co. (D. C.) 239 F. 424; In re Eagle Ice & Coal Co. (D. C.) 241 F. 393; In re H. O. Roberts Co. (D. C.) 193 F. 294. Under the provisions of

section 24b of the Bankruptcy Act (Comp. St. § 9608), an order of the District Court based on an agreed statement of facts may be reviewed by petition to revise. Brainard v. Irwin, supra. For this.reason the appeal is dismissed, and upon the petition to revise the order and decree of the District Court is affirmed.