
    In the Matter of Geneva Witherspoon, Petitioner, against John Mullins & Sons, Inc., Respondent.
    Supreme Court, Special Term, Kings County,
    February 27, 1957.
    
      
      Mary B. Tarcher and Elisabeth Bard for petitioner.
    
      Murray Gingold for respondent.
   Benjamin Brenner, J.

This motion is made pursuant to section 47-e of the Personal Property Law to vacate and cancel an assignment of wages.

Petitioner purchased furniture from respondent and executed the assignment of wages as security for the indebtedness. A copy of same was served on petitioner’s employer who has thus far deducted the sum of $92.81 from petitioner’s wages.

The cancellation is sought partially on the ground that the assignment is void because of failure of consideration in that the furniture was not as ordered and of a different color. The contract may be voidable or give rise to a recovery of damages for breach thereof. However, until the contract is actually rescinded there is no basis for a finding that the wage assignment, made part of the contract, is void. The issue raised does not therefore go directly to the question of compliance with sections 46 to 48, inclusive, of the Personal Property Law (Matter of Lott, 49 N. Y. S. 2d 134) and the wage assignment may not, on that account, be vacated.

The second ground urged as a basis for the cancellation is that petitioner failed to receive a copy of the assignment pursuant to section 46-e of the Personal Property Law. This is an issue which does involve compliance with the statute and does form a proper basis for the present application. (Matter of Tyd v. Local Loan Co., 183 Misc. 139.)

The court will consequently direct a hearing of such issue to be had, pending which decision herein will be held in abeyance. Enter interim order on notice in accordance herewith for hearing and report on the issue of receipt by the petitioner of a copy of the assignment pursuant to section 46-e of the Personal Property Law. If the parties will consent, the order will provide for hearing and determination.  