178 Misc. 872 | N.Y. Sup. Ct. | 1942
Order affirmed, with ten dollars costs.
McCook and Miller, J J., concur.
McLaughlin, J.
I dissent. I am in favor of reversing in this case. Section 684 of the Civil Practice Act provides for an execution against “ the wages, debts, earnings, salary.” The word ‘‘ earnings ” is much more comprehensive and broader than the mere term “ wages.” (Burns v. Maurer, 72 Misc. 481.) There does not appear to be any reason why the word “ earnings ” should not include the tips received by a waitress. She would not receive these tips except for the fact that she is employed in her employer’s restaurant. The employer, in fixing the salary of a waitress, takes into consideration the fact that she will receive a certain amount by way of tips, and to that extent it may be said that the tips are part of the amount of salary paid to the employee. The tips received by a waitress are not merely incidental. They are in every sense a real part of her earnings. Under the circumstances, I favor reversal.