Wells v. Hollister — 267 A.D. 161

Majority

p. 161

Marion H. Wells, Judgment Creditor, Appellant, v. Paul M. Hollister, Judgment Debtor, Respondent.

First Department,

December 10, 1943.

p. 162

John B. Doyle of counsel (David W. Kahn with him on the brief), for appellant.

J. Karlin O’Connell for respondent.

We agree with the Special Term that the judgment debtor should not, by means of proceedings under section 684 of the Civil Practice Act, be required to pay to the judgment creditor an amount greater than the judgment debtor was required to pay by the order in the earlier proceedings under section 793 of the Civil Practice Act which was made on the assumption that the creditor was not availing herself of the provisions of section 684. Orderly procedure requires, however, that the garnishee execution under section 684 be permitted to stand and that payments on the execution issued under section 793 be reduced to the same extent. This makes it possible for the creditor who has availed himself of section 793 to prevent subsequent creditors from securing any undue advantage by availing themselves of the provisions of section 684.

We think the notice of motion in the present case is sufficiently broad to have warranted such relief, and that the order should be modified accordingly, and as so modified affirmed, without costs.

Townley, G-LEimoisr, Hntermyer, Cohk and Callahax, JJ., concur.

Order unanimously modified as indicated in opinion and, as so modified affirmed, without costs. Settle order on notice.