
    (88 Misc. Rep. 143)
    HUBERTUS et al. v. REILLY.
    (Livingston County Court.
    December, 1914.)
    1. Execution (§ 420%, New, vol. 10 Key-No. Series) — Execution—Liability of Garnishee — Master and Servant.
    The failure of an employer to secure a modification of a garnishee execution secured under Code Civ. Proc. § 1391, providing that 10 per cent, of the wages of an employe earning at least $12 per week may be garnished, which execution was duly served on him, did not render him liable for the weekly amount called for therein, irrespective of the amount earned and received by the garnishee.
    2. Execution (§ 420%, New, vol. 10 Key-No. Series) — Execution — Action Against Garnishee — Jud Ghent — Evidence.
    Where, in an action against a garnishee, the employer of the original debtor, to recover the amount of the original judgment, it appeared that the garnishee had failed to respond to a garnishee execution secured under Code Civ. Proc. § 1391, providing that 10 per cent, of the wages of an employs earning at least $12 per week may be garnished, and it also appeared that there was no other garnishee execution then outstanding against the employs, and that he was receiving more than $12 a week during a portion of the time, it was error to enter judgment for defendant.
    Appeal from Justice Court.
    Action by Frank Hubertus and another against William Reilly. From judgment for defendant, plaintiffs appeal.
    Reversed, and new trial ordered.
    A. J. Hibbard, of Dansville, for appellants.
    Newton B. Gorham, of Dansville, for respondent.
   ABBOTT, J.

On the 9th day of April, 1913, the plaintiffs and appellants recovered a judgment in Justice’s Court before Horace A. Bur-dick, justice of the peace of the town of North Dansville, N. Y., against one Samuel Peterson in the sum of $49.96 damages and costs. On the 10th day of May, 1913, an execution issued by said justice against the defendant Peterson was returned wholly unsatisfied.

Upon satisfactory proofs being presented to said justice of the facts required by section 1391 of the Code of Civil Procedure, a garnishee execution was issued by said justice requiring the above-named William Reilly, defendant and respondent, the employer of said Peterson, to pay to the officer presenting said execution the sum of $1.50 per week, that amount being 10 per cent, of the earnings of said Peterson, as shown by the affidavit of one of the plaintiffs herein presented to said justice, until the whole amount of said judgment, costs, and charges was fully paid. Said garnishee execution was duly presented to' said defendant Reilly by the officer having the same for collection, and payment demanded, as in said execution provided, on or. about May 10, 1913, and again on or about October 30, 1913, and payment was on both occasions demanded by said officer and refused by said defendant. The execution in question has never been changed or modified, and is still in force, and is the only garnishee execution outstanding against said defendant Peterson.

This action is brought against said defendant Reilly, an employer, under section 1391 of the Code of Civil Procedure, to recover the amount of said judgment. Defendant filed with the justice a written offer of judgment, signed by him, for the sum of $11 and costs, which offer was not accepted by plaintiff.

Upon the trial of the case, the obtaining of the original judgment, the issuing of the execution thereon and that the same had been returned wholly unsatisfied, the obtaining of the garnishee execution, and the presentation of the same to the defendant and his refusal to pay the same, were all fully proved. The plaintiff claimed that the defendant was liable to pay the sum of 10 per cent, per week — in this case the sum of $1.50 per week — under the order of the justice until said judgment was fully paid, irrespective of any proof as to the amount earned or received by said Peterson in the premises; that the only way he could escape such payment was to come before the justice and have the execution modified or vacated. Plaintiffs gave no evidence on- the trial of the case as to the amount actually earned and received by said Peterson after the original demand under the garnishee execution. It appeared, however, that during a portion of the time Peterson was receiving in excess of $15 per week. Defendant attempted to prove upon the trial of the case the amount of wages actually earned and received by Peterson, but under plaintiffs’ objection this evidence was excluded.

The trial was before a justice and a jury, and the jury, rendered a verdict in favor of the defendant of no cause of action, whereupon said justice entered a judgment against the plaintiffs and in favor of the defendant for $9.10 costs, from which judgment this appeal is taken.

The section of the Code under which this action is brought was enacted for the purpose of enabling creditors to collect their judgments in cases where the defendants were receiving wages weekly to at least the amount of $12, where such judgments could not be collected by execution. The section of the Code prescribes the manner of obtaining a garnishee execution thereunder. An affidavit is presented to the justice or judge showing that the defendant is receiving in weekly wages at least the sum of $12, and that no other garnishee execution is then outstanding against him; and upon such facts being shown to the satisfaction of justice or judge a garnishee execution, so called, is issued, directing such employer to deduct weekly from the wages of such defendant employé 10 per cent, of his weekly wages and pay them over to the officer holding such execution until the same is fully satisfied. Such section also provides that said employer may apply to the court for a modification of said execution. In case the employer refuses to make such payments, the section provides that an action may be brought against him to collect such 10 per cent, of the wages.

In this case no application was made for the modification of the execution, and after a sufficient length of time had elapsed so that computing 10 per cent, of Peterson’s weekly wages at $1.50 per week would amount to the total of the judgment sought to be collected, on the refusal of the defendant to pay the same, this action was commenced.

Plaintiffs’ contention that on the failure of the employer to get the execution modified he was liable for the $1.50 per week until such execution was fully paid, irrespective of the amount earned or received by the employé, cannot be sustained. Such interpretation of the law could not be tolerated for one moment. It might, in effect, be compelling an employer to pay a judgment for which he was not liable in any way. The law is only intended to enable the creditor to obtain some portion of defendant’s wages, by compulsory process, that such employé would not pay voluntarily. In no event can an employer be compelled to pay more than 10 per cent, of the moneys actually earned by said employé, and proof in all cases of this kind must be made of the amount of such wages so earned before plaintiff is entitled to recover, and then he can only recover 10 per cent, of the amount of the wages actually earned.. A defendant can also defeat the operation by law by ceasing to work for an employer who has been served with such a garnishee order, and there is nothing in the law to prevent it in any way.

It appearing that in this case during a portion of the time Peterson was receiving more than $12 a week and that the plaintiffs were certainly entitled to some amount from the defendant, the judgment should be reversed and a new trial ordered, with costs of this appeal and of the first trial, to abide the event of a new trial.

Judgment reversed, and a new trial ordered before Justice Burdick, who tried this action, at his office in the village of Dansville, N. Y., on the 22d day of December, 1914, with costs of this appeal and of the first trial, to abide the event of a new trial.

Judgment reversed, and new trial ordered, with costs to abide event. 
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
     