Pratt v. Lenahan — 158 A.D. 695

Majority

p. 695

In the Matter of the Application of George W. Pratt for an Order Directing the Comptroller of the City of New York to Comply with the Terms of an Execution Issued under Section 1391 of the Code of Civil Procedure in an Action Entitled George W. Pratt against Eugene T. Lenahan. George W. Pratt, Respondent; The Comptroller of the City of New York and The City of New York, Appellants.

First Department,

November 7, 1913.

Headnote

Execution against salary — remedy where person holding salary refuses to pay.

The court has no authority to order a city comptroller summarily to pay over a percentage of the wages of an employee against which an execution has been issued, under section 1391 of the Code of Civil Procedure, for where an officer or corporation holding such salary refuses to pay, he is personally liable to an action by the judgment creditor, which remedy is exclusive.

Appeal by the Comptroller of the City of New York and another from an order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 10th day of March, 1913, reversing an order herein entered in the office of the clerk of the City Court of the city of New York on or about the 29th day of Hovember, 1912, and granting applicant’s motion.

William E. C. Mayer of counsel [Terence Farley with him on the brief], Archibald R. Watson, Corporation Counsel, for the appellants.

Mirabeau L. Towns, for the respondent.

Applicant Pratt sued one Lenahan in the City Court and obtained a judgment therein in his favor for $350. The judgment roll was duly filed, execution thereon was issued to the sheriff and returned wholly unsatisfied. Thereafter an order was obtained under section 1391 of the Code of Civil Procedure

p. 696

directing issuance of execution against the wages, earnings and salary due said Lenahan and in the hands of the comptroller of the city. The comptroller has failed, neglected and refused to comply with the terms of said execution. Whereupon this application was made for an order to compel the comptroller to pay. The Special Term of the City Court denied the motion. On appeal the Appellate Term of the Supreme Court reversed said order and granted the motion. On leave granted by the presiding justice this appeal is taken by the comptroller and the city.

Section 1391 provides that “If such person or corporation, municipal or otherwise, to whom said execution shall be presented, shall fail or refuse to pay over to said officer presenting said execution, the percentage of said indebtedness, he shall be liable to an action therefor by the judgment creditor named in such execution.”

The statute itself having provided the remedy by action against the person or corporation refusing to pay upon presentation of such an execution, such remedy is exclusive. There is no authority to proceed by way of summary order.

The order of the Appellate Term is, therefore, reversed and the order of the City Court affirmed, with ten dollars costs and disbursements in this court and the Appellate Term.

Ingraham, P. J., Scott, Dowling and Hotchkiss, JJ., concurred.

Order of Appellate Term reversed and order of City Court affirmed, with ten dollars costs and disbursements in this court and at the Appellate Term. Order to be settled on notice.