Opinion
June, 1911.
Henry A. Blumenthal, for appellant.
Benjamin F. Kraft, for respondent.
Action to recover forty-nine dollars and ninety-one cents due from the defendant, as employer, to a judgment debtor named Simon Levy, as its employee, as and for his wages, accrued after the rendition of his judgment on June 6, 1910. On June 4, 1910, two days before the rendition of the judgment and a number of days before the issue of the execution under section 1391, the judgment debtor assigned to Nellie Levy, his wife, "all moneys due me which have accrued or may hereafter accrue by reason of my earnings, wages or salary from the Chic Dress Company."
Since June 1, 1910, twenty dollars a week have been paid by defendant to judgment debtor's wife, pursuant to such assignment.
"An assignment of wages to be earned in the future is, at most, an executory agreement to transfer them when earned. It creates no lien on them, except when and as they come into existence by being earned." Matter of Lineberry, 183 F. 339-340.
In Matter of Black, 138 A.D. 562, it was held that a judgment debtor having legal title to wages or salary may not disobey an order for his examination in supplementary proceedings, by transferring them to his wife by virtue of a prior assignment of all his future wages until all his debt to her should be paid.
The court says ( 138 A.D. 564): "An assignment of something which has no present, actual, or even potential existence when the assignment is made, does not operate to transfer the legal title to that thing when it does come into existence. (Field v. Mayor, 6 N.Y. 186; McCaffrey v. Woodin, 65 id. 459.) Such an instrument, if made in good faith for a valuable consideration and not void as against public policy, operates as an executory contract to transfer such after-acquired property and creates an equitable lien thereon * * * But the legal title remains in the assignor (Hovey v. Elliott, 118 N.Y. 124, 136)." See also Cooper v. Douglass, 44 Barb. 410, 416, 417.
Appellant's authorities from other States, whose homestead and other exemptions from execution and whose garnishee policy differ from our own public policy, partly depend upon the different public policy of those States and partly upon the fact that, under the laws of some States, if one of the debtor's creditors, as well as his employer, accepts an assignment of future wages in absolute payment of a debt, another creditor is not in a position to question it.
Judgment affirmed, with costs.
SEABURY and BIJUR, JJ., concur.
Judgment affirmed.