Knight v. Knight — 272 A.D.2d 499

Majority

p. 499

Ruth A. Knight, Respondent, v. Willard R. Knight et al., Defendants. United States of America, Intervener, Appellant.

First Department,

June 24, 1947.

p. 501

Nathan Skolnik of counsel (John F. X. McGohey, United States Attorney for the Southern District of New York, attorney), for intervener, appellant.

Louis L. Garrell of counsel (Max Chopnick and H. I. Bucher with him on the brief; Conner & Chopnick, attorneys), for respondent.

We need not consider the issues presented between the intervener, appellant and plaintiff-respondent beyond section 3672 of the Internal Revenue Code (U. S. Code, tit. 26, § 3672), which provides that the Government’s lien for taxes shall not be valid against any pledgee until notice is filed in an office designated by State law or in the office of the Clerk of the United States District Court. Admittedly no such notice was filed until the day before the trial of this action. The Government attempts to avoid the impact of section 3672 by contending that respondent is not a pledgee. We think that, as the assignment of wages made by defendant Knight was as security for and a means of payment of the defendant’s principal obligation to pay plaintiff $20,000, the plaintiff comes within the classification of a pledgee. The judgment appealed from should be affirmed, with costs to the respondent.

(dissenting). Plaintiff had the burden of proof to show that she came within one of the enumerated classes men

Dissent

p. 502

tioned in section 3672 of the Internal Bevenue Code (U. S. Code, tit. 26, § 3672). She failed to adduce any such evidence. At best she is an assignee with an equitable lien and as to the precise amount claimed to be due is neither a mortgagee, pledgee nor judgment-creditor as the assignment is not self-executing.

The Government’s lien should prevail (Glass City Bank v. United States, 326 U. S. 265 ).

Accordingly, I vote to reverse.

Glennon and Van Voobhis, JJ., concur with Peck, J.; Dobs, J., dissents in opinion in which Callahan, J., concurs.

Judgment affirmed, with costs.

Cases cited

Glass City Bank v. Uited States 326 U. S. 265 SCOTUS 1945-11-13 p. 502