19 A.D.2d 801 | N.Y. App. Div. | 1963
Order, entered on April 15, 1963, denying appellant’s petition to vacate assignment of wages given in 1950 and for return of moneys recently collected thereunder, unanimously affirmed, without costs, with leave to appellant to renew his petition on the ground of loches of respondent, if the circumstances warrant, within 60 days from notice of entry of the order hereon. Appellant’s contention that the Statute of Limitations prevents enforcement of the assignment might have merit if the assignment covered only specific wages earned in the past beyond the period of limitations, and if the assignee’s right of action related back to such time-barred accruals of wages (see Matter of Isensee, 7 A D 2d 224, affd. 7 N Y 2d 873). However, this assignment covers all wages earned “until the indebtedness i:: * ° shall have been paid in full”, and thus recent wages earned are subject to the assignment as long as the indebtedness has not in fact been fully paid. Consequently, the assignee’s rights, and therefore rights of action, accrue upon these wages as they are earned. The applicable Statute of Limitations, in further consequence, does not bar the rights of the assignee to the recent wages (Matter of Lott, 49 N. Y. S. 2d 134, 139). However, equitable assignments such as this are enforced only so long as it is not against public policy or inequitable to do so (see Field v. City of Neiv Tori:, 6 N. Y. 179, 186-187). Since respondent apparently has failed for over' 12 years to enforce its right to collect assigned wages, the circumstances may show it should be barred by its loches, which, to be sure, requires detriment to the one resisting a claim and inexcusable delay on the part of the claimant (see Reynolds v. Snow, 10 A D 2d 101, 111, affd. 8 N Y 2d 899; Prouty v. Brake, 18 Mise 2d 887, 890-891; Palmer v. Palmer, 112 Me. 149, 155-156). If respondent is guilty of loches, the wage assignment may, perhaps, be vacated under the statute (Personal Property Law, § 47-e). Of course, the court does not now pass on any of the legal implications which may rise from facts not now presented to it. Concur — Botein, P. J., Breitel, Rabin, Eager and Steuer, JJ.
