Migliaccio v. Cappola

City of New York Municipal Court

Migliaccio v. Cappola

160 Misc. 557, 289 N.Y.S. 891, 1936 N.Y. Misc. LEXIS 1220

CourtCity of New York Municipal Court

DecidedMay 26, 1936

StatusPublished

Cited by2 cases

This text of 160 Misc. 557 (Migliaccio v. Cappola) is published on Counsel Stack Legal Research, covering City of New York Municipal Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Migliaccio v. Cappola, 160 Misc. 557, 289 N.Y.S. 891, 1936 N.Y. Misc. LEXIS 1220 (N.Y. Super. Ct. 1936).

Pincite

Opinion

Gallagher, J.

The motion by the judgment debtor to vacate the garnishment presents again the question whether the wages of a seaman on a vessel engaged in coastwise trade are exempt from garnishment. The question was recently answered in the affirmative by the Appellate Division of this department. (Manufacturers Trust Co. v. Anderson, 241 App. Div. 843.) The observation of the judgment creditor that the court in that case overlooked the enactment of and pertinent provisions in title 46 of the United States Code, is not borne out by a reading of the opinion. The creditor concedes the debtor in this proceeding to be a seaman on a vessel engaged in coastwise trade. The statute upon which he relies to uphold the garnishment (Act of June 9,1874,18 U. S. Stat. at Large, 64, re-enacted June 30, 1926, as § 544, U. S. Code, tit. 46) does not purport to repeal immunity from attachment of wages of seamen on all vessels engaged in coastwise trade. Certain indicated vessels ■in that trade are expressly excepted by the repealing statute. The creditor having failed to show that the debtor does not w<wk on one of the excepted vessels, the statute is not applicable. (Bloom[558]*558ingdale Bros., Inc., v. Butler, 150 Misc. 903, App. Term, 1st Dept.) This failure of proof would render the garnishment invalid, even if the statutory construction urged by the creditor were adopted and the decision in Manufacturers Trust Co. v. Anderson (supra) ignored. The creditor’s construction seems to be, and he cites a case which tends to support his view (Duggar v. Mobile & Gulf Nav. Co., 224 Ala. 359; 140 So. 614), that Congress by re-enacting in 1926 the repealing act of June 9, 1874, as section 544 of title 46 of the United States Code, intended to remove the protection it had previously given seamen with respect to their wages, where the seamen were employed on coastwise vessels, notwithstanding that Congress had in 1915 (Act of March 4,1915, chap. 153, § 12, 38 U. S. Stat. at Large, 1164, 1169 [U. S. Code, tit. 46, § 601]) not only in terms restored this protection to all seamen, but expressly extended it to fishermen employed on fishing vessels, and notwithstanding that this statute of March 4, 1915, was in 1926 also re-enacted as section 601 of title 46 of the United States Code. That the act of 1915 restored the protection to all seamen seems to be the more reasonable construction. It was so indicated in a dictum in the last sentence of the opinion in Inter-Island Steam Nav. Co. v. Byrne (239 U. S. 459; 36 S. Ct. 132; 60 L. Ed. 382), and although the case was decided before the adoption of the United States Code, the dictum carries considerable weight.

Motion to vacate the garnishment granted. Submit order.

Free access — add to your briefcase to read the full text and ask questions with AI

Gallagher, J.

The motion by the judgment debtor to vacate the garnishment presents again the question whether the wages of a seaman on a vessel engaged in coastwise trade are exempt from garnishment. The question was recently answered in the affirmative by the Appellate Division of this department. (Manufacturers Trust Co. v. Anderson, 241 App. Div. 843.) The observation of the judgment creditor that the court in that case overlooked the enactment of and pertinent provisions in title 46 of the United States Code, is not borne out by a reading of the opinion. The creditor concedes the debtor in this proceeding to be a seaman on a vessel engaged in coastwise trade. The statute upon which he relies to uphold the garnishment (Act of June 9,1874,18 U. S. Stat. at Large, 64, re-enacted June 30, 1926, as § 544, U. S. Code, tit. 46) does not purport to repeal immunity from attachment of wages of seamen on all vessels engaged in coastwise trade. Certain indicated vessels ■in that trade are expressly excepted by the repealing statute. The creditor having failed to show that the debtor does not w<wk on one of the excepted vessels, the statute is not applicable. (Bloom[558]*558ingdale Bros., Inc., v. Butler, 150 Misc. 903, App. Term, 1st Dept.) This failure of proof would render the garnishment invalid, even if the statutory construction urged by the creditor were adopted and the decision in Manufacturers Trust Co. v. Anderson (supra) ignored. The creditor’s construction seems to be, and he cites a case which tends to support his view (Duggar v. Mobile & Gulf Nav. Co., 224 Ala. 359; 140 So. 614), that Congress by re-enacting in 1926 the repealing act of June 9, 1874, as section 544 of title 46 of the United States Code, intended to remove the protection it had previously given seamen with respect to their wages, where the seamen were employed on coastwise vessels, notwithstanding that Congress had in 1915 (Act of March 4,1915, chap. 153, § 12, 38 U. S. Stat. at Large, 1164, 1169 [U. S. Code, tit. 46, § 601]) not only in terms restored this protection to all seamen, but expressly extended it to fishermen employed on fishing vessels, and notwithstanding that this statute of March 4, 1915, was in 1926 also re-enacted as section 601 of title 46 of the United States Code. That the act of 1915 restored the protection to all seamen seems to be the more reasonable construction. It was so indicated in a dictum in the last sentence of the opinion in Inter-Island Steam Nav. Co. v. Byrne (239 U. S. 459; 36 S. Ct. 132; 60 L. Ed. 382), and although the case was decided before the adoption of the United States Code, the dictum carries considerable weight.

Motion to vacate the garnishment granted. Submit order.

Cite This Page — Counsel Stack

Bluebook (online)

160 Misc. 557, 289 N.Y.S. 891, 1936 N.Y. Misc. LEXIS 1220, Counsel Stack Legal Research, https://law.counselstack.com/opinion/migliaccio-v-cappola-nynyccityct-1936.

Opinion

Related

Cite This Page — Counsel Stack