
    (70 Misc. Rep. 168.)
    BOWLEY v. ERIE R. CO.
    (Orange County Court.
    December, 1910.)
    1. Assignments (§ 85)—Equitable Assignments—Pbiobity.
    An order given by an employé on the employer to a third person to pay a designated amount out of such employé’s future wages, and accepted by the employer, is an equitable assignment pro tanto of the wages and subject to previous assignments of the same wages.
    [Ed. Note.—Dor other cases, see Assignments, Cent. Dig. §§ 149-151; Dec. Dig. § 85.]
    2. Assignments (g 57)—Assignment of Wages—Filing of Authenticated Copy with Employer—Statutory Provisions.
    The filing of a copy of such an assignment with the employer, authenticated by a letter of the assignee, is a sufficient compliance with Personal Property Law (Consol. Laws, c. 41) § 42, providing that any person lending money to an employé on account of wages to be earned in
    . the future, upon an assignment covering such loan, shall not acquire any right to attach such wages in the possession of the employer unless, within three days of execution of the assignment or note, the lender shall file with the employer a duly authenticated copy of the assignment under which the claim is made.
    [Ed. Note.—For other cases, see Assignments, Dec. Dig. § 57.]
    3. Assignments (§ 57)—Assignment of Wages—Filing of Notice of Lien with Employer—Statutory Provisions.
    Such an order accepted by the employer could not be sued upon where no notice of lien was filed with the employer as provided by Personal Property Law (Consol. Laws, c. 41) § 42, stibd. 2, providing that no action shall be brought by the holder of an assignment given by an employé for money lent on account of wages to charge the employer, unless a copy of the assignment with a notice of lien was filed with the employer by the person making the loan within three days after the loan was made and the assignment given.
    [Ed. Note.—For other cases, see Assignments, Dec. Dig. § 57.]
    Appeal from Justice Court.
    Action by Robert H. Bowley against the Erie Railroad Company. From a Justice’s judgment for plaintiff, defendant appeals.
    Reversed.
    Appeal by the defendant from a judgment of $17.82, entered February 25, 1910, by Daniel Holbrook, justice of the peace of Port Jervis, N. Y. The action was brought to recover the wages of one Louis Bennett, an employé of the defendant, earned by him during the month of December, 1909. Plaintiff claims under an assignment made by Bennett to him on December 16, 1909, a copy of which he filed with defendant on December 17, 1909, together with a notice in the following language: “Please take notice that I hold an assignment of the wages due one Louis Bennett, a fireman of the New York Division, for the month of December 1909, copy attached.”
    Watts, Oakes & Bright, for appellant.
    William A. Parshall, for respondent.
    
      
       For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes
    
   SEEGER, J.

Among the defenses pleaded is that on December 6, 1909, 10 days before plaintiff’s assignment was given, Bennett, the workman, assigned to one Harry J. Pippitt the wages earned by him during the month of December, 1909, to the extent of $16.50. This order, was filed with the defendant December 15, 1909, the day before plaintiff’s assignment was executed, and was accepted by the defendant, and the amount of wages, $14.57 earned that month by Bennett, was paid to Pippitt.

The order was in the following form:
“Original watch deduction order. $36 50/100.
“Endorse and mail to division superintendent.
“No. 1180. Port Jervis, N. Y., 12/6 1909,
“Erie Bailroad Company, pay to Inspector H. J. Pippitt or order ......
dollars in installments as indicated hereon and deduct same from my wages. If I leave your employ voluntarily or otherwise or lay off indeterminately I authorize you to deduct whatever amount below is still unpaid, from any balance due me, and pay to said inspector.
“1st pay’t from Dec. wages, $16.50.
“2nd pay’t from Jan. wages, $10.00.
“3rd pay’t from Feb. wages, $10.00.
“4th pay’t from .... wages, ....
“Case No. 7715184. Style G. F. Mont Mov’t.
"No. 13112498, Jewels 21.
“Louis Bennett.
“Fire N. Y.
“Occupation. Division.”

The order given by Bennett to Pippitt was upon a specific fund and constituted an equitable assignment pro tonto of the amount of the fund (Brill v. Tuttle, 81 N. Y. 454-457, 37 Am. Rep. 515; Weniger v. Fourteenth St. Store, 191 N. Y. 423-427, 84 N. F. 394) and, being prior in point of time to the plaintiff’s assignment, is entitled to priority in payment out of the wages due to Bennett from the defendant; and, the amount of said wages being less than the amount of the order to Pippitt, there was no fund in the hands of the defendant which could be reached by plaintiff’s assignment.

It is further claimed on the part of the appellant that the assignment to Bowley was a usurious loan and not a bona fide sale of the wages due to Bennett. The consideration paid by plaintiff to Bennett was $25, and at that time it was expected by the parties that Bennett’s wages would amount to $32. I am not satisfied from the evidence that there was not a bona fide sale of the wages. It was also claimed on the part of the appellant that the transaction between plaintiff and Bennett was a loan, under an assignment of wages to be earned in the future, and belongs to that class of assignments regulated by the personal property law (Laws 1909, c. 45 [Consol. Laws, c. 41] § 42), and that the assignment is void because a duly authenticated copy of the assignment was not filed with the defendant, the employer, within three days after the execution of the assignment.

The statute does not provide the manner of authentication which is required, and it would seem to me that the authentication by the letter of the plaintiff accompanying the assignment was a sufficient authentication to comply with the statute; but subdivision 2 of said section provides that:

“No action shall be maintained in any of the courts of this state, brought by the holder of any such contract, assignment or notes, given by an employé for moneys loaned on account of salary or wages, in which it is sought to charge in any manner' the employer or employers, unless it shall appear to the satisfaction of the court that a copy of such agreement, assignment or notes, together with a notice of lien, was duly filed with the employer or employers of the person making such agreement, assignment or notes, by the person * * * making said loan within three days after the said loan was made and the said agreement, assignment or notes were given.”

The plaintiff’s assignment, having been given for an advance of money on account of salary or wages due or to be earned in the future, comes under the provisions of this statute; and, as no notice of lien was given with the copy of the assignment, the action cannot be maintained.

Accordingly the judgment must be reversed, with costs.

Judgment reversed.  