p. 480In the Matter of the Application of the Royal Bank of New York, Appellant, Judgment Creditor of Simon G. Garrison, for an Order Establishing the Priority of Its Lien under Section 1391 of the Code under the Execution in Its Favor against the Wages and Salary of Simon G. Garrison from the City of New York. Thomas Crowell, Respondent.Headnote
Execution against wages — prior execution outstanding — right of subsequent judgment creditor to attack unauthorized execution.An execution against wages under section 1391 of the Code of Civil Procedure cannot issue while a similar execution remains outstanding and unsatisfied.
Where a second and unauthorized execution against wages was filed before a prior execution had been satisfied, a subsequent judgment creditor on filing an execution after the first execution has been satisfied is entitled to have the second and unauthorized execution vacated.
An unauthorized execution against wages may be attacked by any one whose interests are affected. The right to object to its validity is not restricted to the judgment debtor.
Appeal by the petitioner, the Royal Bank of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 21st day of June, 1910.
Gates Hamburger, for the appellant.
Andrew J. Ewald, for the respondent.
This is an appeal from an order denying a motion by the Royal Bank of New York, a judgment creditor of one Simon G. Garrison, an employee of the city of New York, to establish the priority of an execution issued in behalf of said appellant against the wages or salary of - said Garrison, over a similar execution issued in behalf of another judgment creditor named Crowell. In effeot'the motion was to vacate the execution issued in behalf of said- Crowell. Both executions must find their justification, if any, in the provisions of section 1391 of the Code of Civil Procedure. The execution in favor of Crowell was issued March 2, 1910, while another similar
p. 481execution in favor of one M. H. Yogel was outstanding and unsatisfied. For the reasons stated in
Bloommgdale v.
Richardson (
140 App. Div. 350 ), decided herewith, the execution in favor of Crowell was unwarranted and voidable. It is urged that the objection, while it would have been good if taken by the judgment debtor, cannot be" availed of by a junior judgment creditor. This contention is untenable. Tiie appellant is interested in collecting its judgment as promptly as possible, for if it be delayed its execution may become valueless. Crowell having undertaken to issue his execution contrary to the provisions of the statute, it cannot be upheld against any one having an interest in attacking it.
The order appealed from must be reversed, with ten dollars costs and disbursements against the respondent Crowell, and the motion granted, with ten dollars costs against said respondent.
Present — Ingraham, P. J., Clarke, Scott, Miller and Dowling, JJ.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.