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MANUFACTURERS AND TRADERS TRUST COMPANY v. VILLAGE FORESTVILLE (10/09/68)

SUPREME COURT OF NEW YORK, ERIE COUNTY 1968.NY.43018 <http://www.versuslaw.com>; 294 N.Y.S.2d 59; 57 Misc. 2d 973 October 9, 1968 MANUFACTURERS AND TRADERS TRUST COMPANY, PETITIONER,v.VILLAGE OF FORESTVILLE, RESPONDENT, AND HAROLD RICHTER, JR., JUDGMENT DEBTOR Hodgson, Russ, Andrews, Woods & Goodyear (R. W. Echtenkamp of counsel), for petitioner. Lee Towne Adams, Village Attorney, for respondent. Michael Catalano, J. Author: Catalano


Michael Catalano, J.

Author: Catalano

 Petitioner moves for an order pursuant to CPLR 5231, directing judgment against respondent for failure to comply with an income execution against moneys payable to judgment debtor.

Petition alleges that on January 20, 1967, petitioner recovered two judgments against judgment debtor; on January 25, 1967, an execution against judgment debtor's income from respondent was issued to the Chautauqua County Sheriff; on February 22, 1967, said Sheriff served the execution, on the judgment debtor levied, upon said income; that respondent deducted $17.39 from said income which was paid to said Sheriff, but refused to pay more; that from February 22, 1967 to August 22, 1968, judgment debtor earned over $30 weekly, a total of $4,376.10.

Respondent's answer denies generally, except for its incorporation and said service on judgment debtor, then alleges for a first affirmative defense that on February 9, 1967, a Family Court order directed respondent to deduct $15 weekly from pay due judgment debtor, adding: "While this payroll deduction order is in effect, no other wage assignment or garnishee execution shall be in effect"; for a second affirmative defense that petitioner knew in April, 1967, of said order and is guilty of laches in not proceeding against respondent, a "municipality."

CPLR 5231 (subd. [h]) provides, in part: "Two or more income executions issued against the same judgment debtor, specifying the same person from whom the money is received and delivered to the same or different enforcement officers shall be satisfied out of that money in the order in which the executions are delivered to an officer authorized to levy in the county, town or city in which the debtor resides".

The same may be levied upon a municipal corporation (CPLR 5231, subd. [f]).

Thus, if both orders for payment were income executions in this case, petitioner's would have priority.

Subdivision 2 of section 49-b of the Personal Property Law provides, in part: "an assignment of or an order for, wages or salary * * * to be paid for the support of the employee's children * * * in compliance with an order of a court for the support of the employee's minor children * * * takes priority over any other assignment or garnishment of wages, salary". Subdivision 3 of section 48-a provides, in part: "nothing contained herein shall exempt the earnings of a judgment debtor from the application of an order for installment payments to a judgment creditor."

The Legislature, therefore, has given priority to children support orders over wage assignments and garnishments, but the question remains: May they be imposed on one employee's wages concurrently?

In Matter of Beahm v. Beahm (47 Misc. 2d 900) the Family Court of the City of New York wrote comprehensively upon the split of authority in the State of New York re section 49-b of the Personal Property Law, as to whether a payroll deduction order for children's support is exclusive, or whether an employer may be directed to deduct concurrently for such children's support and 10% of wages as garnishment.

The authority cited for the former rule was Feder v. Skyway Container Corp. (218 N. Y. S. 2d 362 [App. Term, 2d Dept.]). (See Matter of State Tax Comm. v. Delaware & Hudson R. R. Corp., 53 Misc. 2d 809 [Sup. Ct., Schenectady County].)

The latter rule rests upon Loan Serv. Corp. v. Bridgeport Lbr. Co. (27 Misc. 2d 938 [Sup. Ct., Onondaga County], affd. without opn. by App. Div., 4th Dept., 14 A.D.2d 827); and Costa v. Chevrolet-Tonawanda, Division of Gen. Motors Corp. (53 Misc. 2d 252 [City Ct. of Buffalo], affd. without opn. by App. Div., 4th Dept., 24 A.D.2d 732).

"The binding force of a judicial construction * * * depends upon the court by which it was rendered and the rank of the tribunal in the judicial hierarchy. Thus the decisions of the Court of Appeals are binding upon the Appellate Division; those of the Appellate Division on the Supreme Court; and so on down from the superior to the inferior judicatories." (McKinney's Statutes, § 72, p. 108.)

A decision of an Appellate Term of one Judicial Department is not binding upon the Supreme Court in another Department which has decided to the contrary. (See N. Y. Const., art. VI, §§ 4, 6, 8.) Therefore, the rulings of the Appellate Term, Second Department, are persuasive but not binding upon Supreme Court, Erie County, but those of the Appellate Division, Fourth Department, are. In the latter Department, an employer may be directed to ...


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