Franklin Nat. Bank of Long Island v. Lynch
| Decision Date | 28 March 1961 |
| Citation | 213 N.Y.S.2d 948,29 Misc. 2d 1039 |
| Parties | FRANKLIN NATIONAL BANK OF LONG ISLAND, Petitioner, v. Martin LYNCH and Fred Roeper, Respondents. |
| Court | New York Supreme Court |
Sahn, Shapiro & Epstein, New York City, for petitioner.
William A. Fitzgibbons, Amityville, for respondent Roeper.
Petitioner, a judgment creditor of respondent Lynch, seeks an order pursuant to section 47-e of the Personal Property Law, vacating an assignment of wages made by Lynch in favor of respondent Roeper, on the ground that the same was never publicly filed as is required by sections 47 and 47-a of the Personal Property Law.
It appears that subsequent to the date of the execution of the subject assignment, petitioner had caused a wage garnishee order to be served on Lynch's present employer, Suffolk Dairy, which has refused to honor the garnishee on the theory that the wage assignment is entitled to priority. Suffolk Dairy is not a formal party respondent in this proceeding, although they were served with the order to show cause. Neither the debtor-assignor, Lynch, nor the wage assignee, Roeper, oppose the petition, but Roeper, by cross notice of motion, seeks leave to file the assignment of wages nunc pro tunc, as of November 3, 1958, the date of its execution.
However interesting may be the questions as to whether the assignee's failure to publicly file his wage assignment affects the relative priorities as between the judgment creditor and the assignee (cf. Edison Electric Illuminating Co. of Brooklyn v. Horace E. Frick Co., 221 N.Y. 1, 116 N.E. 369, L.R.A.1917F, 1123), or whether the wage assignment, which recites an employee-employer relationship as between Lynch and Roeper, is violative of section 197 of the Labor Law, the court is of the opinion that these issues may not be raised by a judgment creditor in a proceeding under section 47-e of the Personal Property Law. That statute, insofar as herein pertinent, reads as follows:
'Vacating of an assignment, by order of a court
(emphasis supplied).
The petitioner has been unable to cite any authority wherein a judgment creditor of a wage assignor, nor a party to the instrument of assignment, was permitted to maintain such a proceeding as a 'person having an interest therein'. To the contrary, it would appear that the remedial legislation affecting wage assignments contained in Article 3-A of the Personal Property Law was designed primarily to provide safeguards to the wage earner, so that over-reaching him is made difficult. See Governor's Message to Legislature on amendment to Personal Property Law, § 47-e, L.1960, ch....
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