William F. Kasting Co. v. Whittle — 159 N.Y.S. 909

Majority

p. 909

(174 App. Div. 224)

WILLIAM F. KASTING CO. v. WHITTLE.

(Supreme Court, Appellate Division, Third Department.

June 30, 1916.)

Headnote

Execution <§=>420%, Now, vol. 10 Key-No. Series—Wages—Amount Subject •—Eabnings.

An employe, receiving §49 a month, and permitted by his employer to live in a §20 a month house under agreement that the employe should furnish his dependent sister with fuel, lights, and food, was subject to garnishee execution only if any surplus in the value of the house rent over his expenditures on account of Ms sister, when added to his wages, reached the requisite amount of being more than §12 per-week since “earnings,” on which liability to garnishment is based, is a more comprehensive term than the word “wages,” including, not only the monthly wages paid the employe, but also the pecuniary benefit to him resulting from the agreement relative to the maintenance of his sister and his right to live in the house free.

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Earnings.]

<£c»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

Appeal from Albany County Court.

Action by the William F. Kasting Company against Alfred E. Whittle. From an order denying defendant’s motion to modify or vacate an order, granted without notice, directing that an execution issue against defendant’s earnings, defendant appeals. Order appealed from reversed, and order directing that execution issue vacated.

Argued before KELLOGG, P. J., and LYON, HOWARD, WOODWARD, and COCHRANE, JJ.

Walter E. Ward, of Albany, for appellant.

Arnold, Bender & Hinman, of Albany (Roland Ford, of Albany, oí counsel), for respondent.

The question involved upon this appeal is whether the earnings of the defendant are subject to a garnishee execution as being in excess of $12 per week.

The order appealed from denied defendant’s motion to modify or vacate an order, granted without notice, directing that an execution issue against defendant’s earnings to the amount of $1.68 per week. The affidavit of one of plaintiff’s attorneys, upon which the order that an execution issue was granted, stated that the earnings of defendant were $47.50 per month, together with the rent of a house of concededly the reasonable rental value of $20 per month. The motion to modify or vacate was supported by the affidavits of the defendant and of his employer, who is his son. By these affidavits it appears that, under an agreement between the defendant’s brother and the defendant’s employer, the latter built a house upon the lot of the former, which was to be occupied by a maiden sister of defendant, who was upwards of 60 years of age and was without means of support, and that the defendant should reside in the house with her and furnish her with food, fuel, and lights, and should receive from his said employer $49 per month for his services as superintendent of his son’s greenhouses. No answering affidavits were presented upon the motion to vacate, al

p. 910

though the defendant had been examined in proceedings supplementary to execution. I think that, upon the facts as presented, the motion to vacate should have been granted.

Concededly wages of $49 per month for 52 weeks of the year do not constitute sufficient earnings to warrant issuing a garnishee execution, and clearly the whole rental value of the house, of $20 per month, cannot properly be included as part of the' earnings of the defendant. It is not claimed that the defendant had theretofore been placed under any legal obligation to support his sister. Whether the value of the ■right given.to the defendant to live in the house with his sister, which must be considered not a mere gratuity, but as part of defendant’s earnings, exceeds the reasonable value of the fuel, lights, and food necessarily furnished by him to her, does not appear. If it does exceed it, then I think the surplus constitutes earnings which should be added to the wages of $49 per month, and upon the total the right to a garnishee execution should be determined. The only statement bearing upon the subject is found in the affidavit of the son to the effect that the $49 wages is actually necessary for the living expenses of the defendant and his sister. The word “earnings” is a more comprehensive term than the word “wages.” Its signification is sufficiently extensive to include, not only the monthly wages paid the defendant, but also the pecuniary benefit to the defendant resulting from the agreement relative to the maintenance of the sister and the right of the defendant to live in the house free of charge.

The order appealed from should be reversed, and the order directing that an execution issue vacated. All concur.