Opinion
July 13, 1970
In an action by a judgment creditor to recover money owing on the basis of an income execution pursuant to plaintiff's judgment, the appeal is from an order of the Supreme Court, Nassau County, dated December 11, 1969, which denied plaintiff's motion for summary judgment. Order reversed, without costs, and summary judgment granted to plaintiff for $905.88, with interest. Plaintiff is suing for $905.88 (reduced to that amount in the reply affidavit in support of the motion) plus interest from August 13, 1968. Plaintiff recovered a judgment against one Gene Occhiuto in 1964. Occhiuto was a salesman for defendant, which is a licensed real estate broker. An income execution was served on defendant on August 8, 1967, as a result of which defendant was required to deduct 10% of the earnings of the judgment debtor. Defendant failed to make any deductions. The moving papers demonstrate, without contradiction, that Occhiuto was paid in excess of $20,000 by defendant from 1967-1969. The contract between the judgment debtor and defendant provided that the real estate broker would advance the sum of $50 per week as an advance against commissions. Since this weekly advance was merely a loan, no settlement of commissions would take place until all loans were repaid. In interpreting CPLR 5231 and the appropriate cases, we hold that, to the extent of the commissions actually earned, such payments constituted earnings due and paid to the employee, and the creditor is entitled to the application of 10% of such earnings on its garnishee execution. Franklin Simon Co. v. Pease Elliman ( 238 App. Div. 614) is no authority to the contrary. The holding in that case is merely to the effect that true loans and advances, in excess of actual earnings, made under an employment contract similar to the contract at bar, do not constitute earnings subject to garnishment. In the Franklin Simon case only $13.90 was earned by the judgment debtor after the levy of execution. (See President Directors of Manhattan Co. v. Washington Haberdasheries, 163 Misc. 66; Larry Goldwater, Inc. v. Snyder Nat. Realty Co., 48 Misc.2d 669, 672.) Munder, Acting P.J., Martuscello, Latham, Kleinfeld and Benjamin, JJ., concur.