Kahn v. Coles — 115 N.Y.S. 885

Majority

p. 885

KAHN v. COLES.

(Supreme Court, Special Term, New York County.

March, 1909.)

Headnote

Garnishment (§ 189*)—Existence of Other Remedy.

An employer refused to pay plaintiff in garnishment the amount of an order obtained under Code Civ. Proc. § 1391. Held, that the remedy for plaintiff was by action under such section, and not by proceedings for contempt.

[Ed. Note.—For other cases, see Garnishment, Cent. Dig. §§ 365-370; Dec. Dig. § 189.*]

Action by one Kahn against one Coles. Judgment for plaintiff. On motion to punish officers of corporation for contempt. Motion denied.

Maurice B. & Daniel W. Blumenthal, for the motion.

John O’Connell, opposed.

Motion to punish officers of a corporation for contempt. Kahn had a judgment against Coles, and obtained an order, under the recent amendment of the Code, directing the corporation in whose employ Coles was alleged to be to pay to the sheriff for the creditor’s benefit 10 per cent, of the debtor’s salary. It is alleged that the corporation has failed to pay over this 10 per cent., and plaintiff now seeks to punish its officers as for a contempt.

Code Civ. Proc. § 1391, which provides for this form of execution, provides the remedy as follows:

“If such person or corporation, municipal or otherwise, to whom such 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, and the amount so recovered by such judgment creditor shall be applied towards the payment of said execution.”

I am of opinion that the Legislature has indicated that remedy by action shall be the only remedy of the creditor, and that contempt proceedings will not lie.

Motion denied, with costs. Settle order on notice.