Opinion
March 31, 1965
Frederick M. Douglass for petitioner.
Leo A. Larkin, Corporation Counsel, for respondent.
Jay Murray, judgment debtor in person.
Application for a final judgment directing respondent employer to pay over to the Sheriff the entire salary of the judgment debtor in her possession is denied for insufficiency and without prejudice. It appears that the judgment creditor has proceeded both by way of garnishment and income execution, though the latter remedy is said not to affect the same sum of money affected by the garnishee restraint. Be that as it may, the debtor is mistaken in his reliance in McDonnell v. McDonnell ( 281 N.Y. 480), for the proposition that these are mutually exclusive remedies, in view of the legislative history of the applicable statutory provisions (see L. 1941, ch. 694, amdg. Civ. Prac. Act, § 793 to overcome the effects of the McDonnell decision; and Final Report of Advisory Comm., p. A-570 [Advance Draft 1961] and Fifth Preliminary Report by Sen. Finance Comm., p. 619, indicating the drafters' intention to carry forward section 793 substantially the same into CPLR 5226).
However, the garnishment sought to be reduced to judgment herein would take the entire salary due and owing to the judgment debtor as of January 31, 1965. CPLR 5205 (subd. [e]) exempts from application to the satisfaction of a money judgment 90% of the debtor's earnings, "except such part as a court determines to be unnecessary for the reasonable requirements of the judgment debtor and his dependents". While the burden of showing "necessity" rests upon the judgment debtor and, while the judgment creditor appears to be entitled to more than 10% in this case, the court may not accept the creditors' implied assumption that 100% of the debtor's salary is unnecessary to him or his dependents. Assuming, as the court does, that petitioner desires to reach more than the minimum statutory percentage, petitioner must show some facts which will enable the court to reach a determination called for by CPLR 5205 (subd. [e]). The subsequent agreement which is discussed in the movant's reply affidavit should be submitted as part of any application to reach the fund here.