45 Misc. 2d 149 | N.Y. Sup. Ct. | 1965
The garnishee herein, Earl J. Smith and Company, Inc., moves to vacate plaintiff’s restraining notice to garnishee wages of its employee, the defendant herein, and for a further order vacating the subpoena to "take the deposition of said Earl J. Smith and Company, Inc. Its contention is that it is an innocent third party in this matter and is under a legal compulsion to pay the defendant his wages by reason of section 596 of title 46 of the United States Code, in this case, a case of a foreign voyage. It is also contended that it may be subject to a penalty if it fails to pay the defendant, a seaman, within 24 hours of docking by reason of the aforesaid statute. The motion is in all respects denied. Any withholding of funds by the employer, from the employee defendant, is “ with sufficient cause ” since there is an outstanding order of this court directing withholding of 10% of the defendant’s indebtedness and there is a judgment of this court for alimony arrears against the defendant. The placing of seaman’s wages in custodia legis for the payment of support is recognized as sufficient cause to avoid the payment of any penalty under section 596 aforementioned (see Rennebaum v. Rennebaum, 22 Misc 2d 614). Moreover, an order or judgment for support of a divorced wife and child of a seaman for delinquent support payments constituted an order of a court within the exception to said section 601 of title 46 of the United States Code. (Avilla v. Avilla, 81 Cal. App. 2d 210.) Accordingly, the motion is denied.
