Consalvas v. Brooklyn Loan Corp.

In a special proceeding under section 47-e of article 3-A of the Personal Property Law, to cancel a wage assignment on the ground that the assignee had failed to deliver to the assignor a copy of the assignment and of the accompanying papers as required by section 46-e of said article 3-A, the assignor-petitioner appeals from an order of the Supreme Court, Kings County, dated June 16, 1960, denying his petition to cancel the assignment. Order reversed, without costs, and proceeding remitted to the Special Term for further action consistent herewith. The record presents a sharp issue of fact as to whether the assignee complied with the statute (Personal Property Law, § 46-e) by making the requisite delivery to the assignor of a copy of all the papers incident to the assignment. The issue cannot be properly resolved on the basis of the conflicting affidavits. Under the circumstances, the issue should be determined only after a plenary hearing at which the respective parties have the opportunity to subject the witnesses to cross-examination. The proceeding, therefore, should be remitted to the Special Term for the purpose of holding such a hearing and making its determination on the basis of all the proof which may be adduced. Nolan, P. J., Beldock, Christ, Pette and Brennan, JJ., concur.