This case involves the constitutional validity of Section 1391 of the New York Code of Civil Procedure relating to the garnishment of wages and other choses in action of a judgment debtor.
This section of the Code, as amended by the Laws of 1919, c. 278, provides that where a judgment has been recovered and an execution thereon returned unsatisfied, the judgment creditor may apply to the court without notice to the judgment debtor, and on satisfactory proof that any wages, debts, earnings, salary, income from trust funds or profits, are, or will thereafter become, due and owing to the judgment debtor, to the amount of twelve dollars or more per week, a judge or justice shall order that an execution issue against such wages, etc., of the judgment debtor. On presentation of such execution by the collecting officer to the person from whom such wages, etc., are or may become due and owing, the execution shall become a lien and continuing levy upon such wages, etc., to the amount specified in the execution, not exceeding ten per centum thereof, until the execution is fully satisfied. Any person to whom the execution is presented, who is or becomes indebted to the judgment debtor, shall, while the execution remains a lien upon the indebtedness, pay over to the officer the amount of the indebtedness prescribed by the execution until it is wholly satisfied; and such payment shall be a bar to any action therefor by the judgment debtor. If such person fails or refuses to pay over to the officer the percentage of such indebtedness, he shall be liable to an action therefor by the judgment creditor; and the amount recovered shall be applied towards the payment of the execution. Either party may apply at any time for such modification of the execution as shall be deemed just.
The Encyclopedia Press, Inc., having duly recovered a judgment in the Supreme Court of New York against an employee of the Endicott Corporation receiving weekly wages of more than twelve dollars, was awarded, ex parte, under this section of the Code, an execution against his wages, directing the Corporation to pay over each week ten per centum thereof until the execution was satisfied. The Corporation failed and refused so to do, and continued to pay the employee his entire weekly wages as they became due.
The Encyclopedia Press thereupon brought suit in the Supreme Court against the Corporation, upon the execution, for the accumulated percentages of the weekly wages that it had not paid over. Judgment was recovered; which, upon successive appeals, was affirmed, without opinions, by the Appellate Division and the Court of Appeals. 200 App. Div. 847, 191 N. Y. S. 924; 234 N. Y. 627, 138 N. E. 474. The record was remitted to the Supreme Court, to which this writ of error was directed.
The Corporation contends that section 1391 of the Code is in conflict with the due process clause of the Fourteenth Amendment, in that it authorizes the issuance of a garnishment execution without notice to the judgment debtor or affording him a hearing, and, further, in that it inter feres with the liberty of contract between the judgment debtor and the garnishee.
1. We assume for present purposes that a garnishee sued upon the execution has, by reason of the nature of the cause of action and the liability which this section imposes upon him, the right to challenge its constitutionality on the ground that it is wanting in due process as against the judgment debtor. See High v. Bank of Commerce, 95 Cal. 386, 30 P. 556, 29 Am. St. Rep. 121.