295 N.Y. 324 | NY | 1946
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Plaintiff Morris Plan Industrial Bank, a New York corporation which holds an unsatisfied Pennsylvania judgment against nonappealing defendant Gunning, who lives and works in Pennsylvania, has been allowed, in this suit on that Pennsylvania judgment, to take out a warrant of attachment in New York against Gunning's wages earned in Pennsylvania *328
from the "third party" appellant, Pennsylvania Railroad Company. The purpose and effect of that attachment is to subject to plaintiff's claim the whole of Gunning's wages so earned in Pennsylvania, although Pennsylvania law since 1845 has forbidden any garnishment or attachment of wages (Firmstone v. Mack,
The principal debtor Gunning has not appeared and the attack on the attachment is made by his employer, appellant Pennsylvania Railroad Company. Appellant is authorized to do, and is doing, business in this State. Although counsel for plaintiff-respondent states that the judgment obtained by his client against Gunning in Pennsylvania was on a debt contracted in New York, there is nothing in the papers to show that. So far as we are concerned this suit of plaintiff-respondent Morris Plan Bank against Gunning is on a Pennsylvania obligation.
Plaintiff, commencing this suit against Gunning in the New York City Municipal Court, applied to the Municipal Court, under section 916 of the Civil Practice Act, for a warrant of attachment for the purpose of obtaining jurisdiction over Gunning. The affidavit of plaintiff's vice-president, on which the attachment was issued, shows that the property of Gunning, which plaintiff was attempting to attach in this State, consisted of the wages which Gunning was earning in Pennsylvania from appellant. The Municipal Court Marshal executed the warrant of attachment in New York City by serving the papers on a representative of appellant. Appellant thereupon moved under section 948 of the Civil Practice Act, to vacate the attachment, urging that there was no debt due from it to Gunning in New York State and thus no attachable property here. Appellant made the further point also that, if any such debt was owing from the railroad company to Gunning in New York State, it was a debt for wages which, appellant railroad company contends, is exempt from such an attachment. The Municipal Court denied appellant's motion to vacate. The Appellate Term *329 and the Appellate Division affirmed, the latter granting leave to appeal to this court and certifying a question to us.
This case does not, of course, directly involve a garnishee execution since a garnishee execution may be issued only after judgment. However, the ultimate purpose of procuring this attachment is to collect the judgment, when and if entered, out of Gunning's wages. Since the Marshal's return of the attachment shows that he has purported to attach all moneys due Gunning from appellant, the execution that will be issued if this attachment be upheld and judgment entered in the cause, will authorize a levy on all of Gunning's wages, not merely on the per cent thereof as to which a garnishee execution could be issued if judgment were obtained in New York against Gunning on personal service.
Appellant railroad company argues that the situs of its debt to Gunning is in Pennsylvania, not New York, and that, accordingly, such debt does not constitute property of Gunning attachable in New York, citing Plimpton v. Bigelow (
We pass to appellant's next contention. Pointing out that our garnishee statute (Civ. Prac. Act, § 684), permits garnishee execution against 10% only of a judgment debtor's wages, appellant argues that section 684 describes the only machinery whereby wages may ever be reached by execution in this State. Assuming, as it does, that our garnishee statute describes the only method whereby wages may be collected under a judgment in New York, appellant reasons that section 916 of the Civil Practice Act, above referred to, making foreign debts attachable in New York, cannot, therefore, apply to wages. There are some cases in New York which angle toward that result (seeRolt-Wheeler v. Rolt-Wheeler,
Much closer to our case is Heiskell v. Heiskell (ROSENMAN, J. not officially reported but see N.Y.L.J., Jan. 13, 1938, p. 190, col. 4) where the Special Term modified an attachment order, holding that an attachment before judgment could, because of the garnishee law, reach 10% only of the wages due the principal debtor. The theory of Heiskell v. Heiskell is that, while section *331
916 of the Civil Practice Act on its face permits attachment of the whole of any debt, including wages, nonetheless another attachment statute (Civ. Prac. Act, § 912, which limits the sheriff to levying upon property "not exempt from levy and sale") has the effect of exempting from attachment the 90% of wages which are exempt from garnishment and allowing the attachment to operate only on the 10% which is subject to garnishment. In other words, to carry out the total statutory policy, the attachment and garnishment statutes must be read together. There is a sound basis for this approach, since the garnishee laws are analogous to the attachment statutes (Plimpton v. Bigelow, supra;Douglass v. Phenix Ins. Co., supra, and see opinion of SEARS, J., in Morris Plan Co. v. Miller,
Further evidence that it is our State policy to protect all but 10% of wages from any seizure for debt is found in section
Appellant asks not for an amendment of, but for a vacatur of, the whole attachment. We cannot vacate it on the theory that there is no situs of any debt in New York. Nor can we vacate this attachment in toto on the ground that since the wages earned by Gunning in Pennsylvania were not subject to any levy in Pennsylvania, therefore the same protection must be accorded in New York. The New York garnishment statutes are applicable to wages earned outside the State (Feinman v. Marks, supra;Morris Plan Co. v. Miller, supra). Some cases in other States hold that, under rules of comity, the courts of one State will not permit garnishment of wages earned in another State where the laws of that other State prohibit garnishment (see Drake v.L.S. M.S. Ry. Co.,
On the argument appellant's counsel asserted that this attachment is invalid as constituting an undue burden on the interstate commerce in which appellant is engaged. Such inconvenience as here results to appellant does not constitute an unconstitutional burden on commerce (Davis v. C.C.C. St. L.Ry.,
The orders should be reversed and the case remitted to the Municipal Court, with instructions to enter an order amending the warrant of attachment so that it will direct the Marshal to attach no more than 10% of the wages in question, with costs to the appellant in all courts except the Municipal Court. The question certified should be answered as follows: "Yes, to the extent of 10% thereof."
LOUGHRAN, Ch. J., LEWIS, CONWAY, THACHER and DYE, JJ., concur.
Orders reversed, etc.