202 Misc. 154 | N.Y. Sup. Ct. | 1951
This is a motion brought pursuant to section 47-e of the Personal Property Law to set aside a wage assignment.
The applicants, William Markowitz, the wage assignor and his employer Marcomo Stevedoring Corporation, attack the wage assignment upon the grounds: (1) that the wage assignment was made without consideration; (2) that the wage assignee divested himself of any and all interest in and to said wage assignment when he assigned the notes to a third party; and (3) that the wage assignee failed to comply with sections 42 and 47-a of the Personal Property Law.
As adverted to above, the applicants contend that the wage assignment is void for the reason that the wage assignee failed to comply with former section 42 of the Personal Property Law requiring the service of a copy of the wage assignment upon the employer within three days after its execution. At the time the wage assignment was signed by Markowitz, subdivisions 1 and 2 of section 42 provided:
“ 2. No action shall be maintained in any of the courts of this state, brought by the holder of any such contract, assignment or notes, given by an employee for moneys loaned on account of salary or wages, in which it is sought to charge in any manner the employer or employers, unless a copy of such agreement, assignment or notes, together with a notice of lien, was duly filed with the employer or employers of the person making such agreement, assignment or notes, by the person or persons, corporation or company making said loan within three days after the said loan was actually made and the said agreement, assignment or notes were given as provided in subdivision one of this section.”
Ooncededly, the wage assignment here was not filed with the employer within three days after its execution in accordance with the above-quoted statute. It is the wage assignee’s contention, however, that section 42 has no bearing on this case since it was repealed by chapter 823 of the Laws of 1950, effective September 1,1950. The wage assignee also argues that the filing of the assignment in the County Clerk’s office in Queens and with the employer in March, 1951, pursuant to new sections 47 and 47-a of the Personal Property Law, effective September 1,1950, was sufficient.
A case similar to the one at bar is Sheer v. Family Finance Corp. (46 N. Y. S. 2d 398). There the court held that the assignment of wages signed by the defendant gave the assignee a power of attorney which violated section 353 of the Banking Law as it read on June 17, 1941, the date that the assignment was executed. The court also held that the amendment of section 353 effective September 1, 1942 (L. 1942, ch. 605), confining the prohibition to powers of attorney to confess judgment, was not retroactive and had no application to an assignment of wages executed prior to the effective- date of the act.
It is also to be noted that in the present sections 47 and 47-a of the Personal Property Law, which went into effect September 1,1950, there is no statement that they apply only to assignments executed after or before the effective date thereof. Such statutes are to be construed as prospective only and it takes a clear expression of legislative purpose to justify a retroactive application (Matter of Lott, 49 N. Y. S. 2d 134). Changes in the form of remedies constitute an exception to this rule however and this is true of section 47-e of the Personal Property Law under which the present application has been made to vacate the assignment (Sheer v. Family Finance Corp., supra). Furthermore, it would seem to the court that the cases relied upon by the wage assignee to the effect that the repeal of the prohibitory statute removes the defense of illegality, have no application to the present case. Indeed, in Toll v. Friedman (272 App. Div. 587) the court pointed out that a contract entered into in violation of the law is not automatically purged of its illegality by a mere repeal of the prohibition statute. There
One other question remains to be considered and that is whether the judgment in the Muncipal Court action is res judicata as to the validity of the wage assignment. While the issues raised in this proceeding appear to be the same as those raised in the Municipal Court action, the parties are different. In the Municipal Court action the wage assignee sued the employer Marcomo Stevedoring Corporation but the wage assignor William Markowitz was not joined as a party defendant. Under the circumstances, the Municipal Court judgment cannot be considered to be a bar to the present application which is made on behalf not only of the employer but also on behalf of the employee Markowitz (Kessler v. Fligel, 240 App. Div. 232, appeal dismissed 264 N. Y. 689; Jasper v. Rozinski, 228 N. Y. 349; Self v. International Ry. Co., 224 App. Div. 238; Gerstein v. Fisher, 12 Misc. 211, affd. 14 Misc. 644).
The application of William Markowitz to vacate the wage assignment is granted. Settle order.