Erie Railroad v. Smith

68 Misc. 136, 123 N.Y.S. 973

• Court: New York Supreme Court
• Decided: June 15, 1910
• Status: Published

Opinion

Tompkins, J.

The assignment to the defendant Bowly was executed and delivered in July, 1908, but was in the form of a printed bl&nk without any writing upon it, except the name of the assignor signed thereto. It appears that the assignor authorized Bowly to fill in the printed blank any month that he might choose, and to claim the assignor’s wages for such month under such assignment. Bowly held this blank paper for more than a year, and until the death of the assignor, Smith, which occurred in October, 1909, and in that month, and after the assignor’s death, Bowly notified the plaintiff that he held an assignment of the wages due said S'mith, for the month of October, 1909. The printed blank was not filled out until May, 1910, just before the trial of this action; so that the first time that the defendant Bowly made or asserted any claim under his assignment, or made an election as to the month for which he would claim the assignor’s wages, was when he notified the plaintiff, in October, 1909, that he claimed Smith’s wages for the month of October.

It appears that, in September, 1909, and before Bowly made his election, or exercised the authority given him by his assignor, Smith, and before he gave notice thereof to the plaintiff, the said Smith signed and delivered to the defendant Davidson, an order, in writing, by which said Smith directed the plaintiff to pay to the said Davidson the sum of thirty-three dollars in monthly installments of eight dollars each, which amount of eight dollars was to be deducted from said Smith’s wages for the months of September, October, ¡November and December of the year 1909; and the written assignment contained, in addition thereto, the following provision : “ If I leave your employ, voluntarily or otherwise, or lay off indeterminately, I authorize you to deduct whatever amount is still unpaid, from any balance due me, and pay to said inspector.”

This written order, after being delivered by Smith to Davidson in September, 1909, was delivered by Davidson to the plaintiff on the 14th day of September, 19.09, and accepted by the plaintiff, and a part of Smith’s wages for the month of September paid thereunder by the plaintiff to Davidson.

This is a brief statement of the facts as they are admitted by all parties. Bpon these facts I find .that the written order executed and delivered by Smith to Davidson, in September, 1909, and delivered to and accepted by the plaintiff, constituted an equitable assignment of Smith’s wages to the extent of eight dollars for the month of October, and, by the clause above quoted, the balance due Smith at the time of his death, in October, 1909, for his October work, and that the assignment to Bowly did not become effective until October, 1909, when he used the authority given him by Smith, and made his election to claim Slnith’s October wages by the notice that he sent to the plaintiff.

I hold that the assignment to Bowly of Smith’s October wages was not complete until Bowly exercised the authority that Smith had given him at the time of the delivery of the printed blank, by choosing to claim Smith’s October wages;, and by notifying the plaintiff of his election and claim, which was not until the 20th of October, 1909; while, prior thereto, and in the month of September, 1909, Davidson had received from Smith a complete and effective assignment covering the October wages.

My conclusion, therefore, is that the defendant Davidson is entitled to judgment awarding him the moneys due b"y the plaintiff to Smith, for the month of October, 1909, paid into court in this action by the plaintiff. Dpon the question of costs I will hear counsel at a Special Term to be held in Goshen on July 12, 1910, at which time the finding may be submitted for settlement.

Judgment accordingly.