(dissenting). We are required to determine the validity of an assignment of wages incorporated in a separation agreement dated August 14,1952 made between plaintiff and her then husband, defendant Carll S'. Downs. Thereby, in the event of the husband’s default in the payment of support, his employer is authorized to pay to the wife the amount of the arrears to the extent of 50% of the wages or salary due him. The separation decree of the Supreme Court, County of New York, dated March 23, 1953, ratifies and approves the agreement but expressly provides it shall not merge with and shall survive the decree. Since November 4, 1959 the husband sustained defaults in the total sum of $10,690.
The husband entered the employ of defendant-appellant in January, 1961; he is employed in its Wakefield, Massachusetts, office. Defendant-appellant is a Massachusetts corporation; its principal place of business is in Wakefield, and it is authorized to do business in New York. The husband has not been served with process in this action; he resides in New Hampshire.
Whether the earnings of the husband under his employment contract with defendant-appellant are assignable is determined by the May of Massachusetts where the employment originated and the place of performance. The effectiveness of the assignment is resolved by the laAV of the place where it is made, (Mogul v. Jenkins Bros., 203 Misc. 635 [App. Term, 1st Dept.].)
Massachusetts law (Laws of Mass., ch. 154, § 3) provides; “ § 3. No assignment of or order for future wages other than one subject to the preceding section shall be valid for a period exceeding two years from the making thereof, nor unless made to secure a debt contracted prior to or simultaneously with the execution of said assignment or order, nor unless executed in writing in the standard form set forth in section five and signed by the assignor in person and not by attorney, nor unless such assignment or order states the date of its execution, the money or the money value of goods actually furnished by the assignee and the rate of interest, if any, to be paid thereon. Three fourths of the weekly earnings or wages of the assignor shall at all times be exempt from such assignment or order, and no assignment or order shall be valid which does not so state on its face. No such assignment or order shall be valid unless the written acceptance of the employer of the assignor, and,,if the assignor is a married man, the written consent of his wife to the making thereof, are endorsed thereon or attached thereto. ”-
The Massachusetts statute proscribes the assignment of future wages for a period exceeding two years from the making of the assignment, limits the scope of the assignment to secure a debt *383contracted prior to or simultaneously with the assignment, exempts three fourths of the weekly earnings and states such assignment is invalid unless accepted in writing by the employer. Here the assignment antedated by more than eight years the husband’s employment by defendant-appellant, the employer has refused to accept it and it is not for a prior or simultaneously contracted debt.
Inapplicable are cases relative to garnishees and attachments which involve remedies and are governed by the law of the forum. (Morris Plan Ind. Bank of N. Y. v. Gunning, 295 N. Y. 324, 331.)
Matter of Knauth (12 N Y 2d 259) does not avail the plaintiff-respondent. There the statutory limitation on the income beneficiary’s right to alienate was held inapplicable to an assignment of his income from an existing trust to his wife for her and their children’s support. At common law there was no disability in respect of such an assignment. Here involved is the application of a wage assignment to wages and earnings deriving from future employment which at common law did not impose any duty on an employer such as the defendant-appellant. (Restatement, Contracts, § 154, subd. [2].) The Massachusetts statute within limitations enables an assignment of earnings arising from future employment, but does not support the assignment herein.
Accordingly, I dissent and vote to reverse the grant of summary judgment to plaintiff-respondent and grant summary judgment to defendant-appellant dismissing the complaint.
Eager and Steuer, JJ., concur with Breitel, J. P.; McNally, J., dissents in opinion, in which Stevens, J., concurs.
Order and judgment granting plaintiff-respondent summary judgment affirmed, with costs to respondent.