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Но это было не совсем .

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Casino v. court of appeals 1991

Richard Scheer, on the letter brief. In , defendant William J. On May 24, , plaintiff moved for a wage execution pursuant to R. He also stated that no other wage execution was in place.

The trial judge declined to order a wage execution because defendant could not "afford" it. In September , plaintiff requested that the trial judge reconsider, arguing that the wage execution statute is "mandatory.

We reverse, holding that, upon the presentation of the statutorily mandated proofs, a judge is without discretion to deny a wage execution under N. This statute has not previously been interpreted in light of the pending question of whether it is mandatory or permissive. However, the use of the word "shall" by the Legislature ordinarily carries with it a presumption that the provision is mandatory and not merely permissive.

To be sure, this presumption can be overcome by something in the character or context of the legislation which justifies a different meaning. Department of Treasury, Division of Pensions, 84 N. Here, however, there is nothing to suggest that a literal reading of N. The proofs required to obtain a wage execution do not contemplate the exercise of discretion. All that is required is proof that "a judgment has been recovered" by plaintiff and that "wages, debts, earnings, salary, income from trust funds, or profits are due and owing to the judgment debtor There is no provision in the statute for the judge to consider other obligations of the judgment debtor or to assess whether the debtor can "afford" a wage execution.

See Chelsea-Wheeler Coal Co. The absence of discretionary language in N. Two wage executions may not be satisfied at the same time but instead are satisfied sequentially in order of priority.

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