Rosenstock v. City of New York

A demurrer to the original complaint was sustained by the Municipal Court of the city of New York on the ground that it did not state facts sufficient to constitute a cause of action, and that decision was affirmed on appeal. See Rosenstock v. City of New York (Sup.) 89 N. Y. Supp. 948 . We then held that the complaint was defective in not alleging the nonexistence of a prior unsatisfied and outstanding execution, similar in character to that issued in behalf of the plaintiffs. The complaint has been amended in the respect referred to, but the amended complaint has also been held bad on demurrer; and on this appeal we are required to determine whether section 1391 of the Code of Civil Procedure, under which the action is brought, applies to an em-. ployé of a municfpal corporation.

The facts are fully set forth in thé opinion of Mr. Justice HOOKER on the first appeal. It is sufficient for present purposes to say that the plaintiffs have recovered a judgment against one of the defendant’s police officers for necessaries sold to him by them, and that they seek in this action to recover a percentage of his salary as such police officer, to be applied in the discharge of his indebtedness.

The language of section 1391 of the Code of Civil Procedure is somewhat peculiar. It provides first that, on the return wholly or partly unsatisfied of an execution issued upon such a judgment as the plaintiffs have recovered, the court, on certain proof, must grant an order that an execution issue against the wages, debt, earnings, salary, income from trust funds or profits of the judgment debtor, and that, “on presentation of such execution by the officer to whom delivery for collection to the person or persons from whom such wages, debts, earnings, salary, income from trust funds or profits” are due and owing, the execution shall become a lien and a continuing levy upon such wages, earnings, debts, salary, income, or profits, to the extent therein stated. Nothing is said in that part of the section expressly about any claim of the judgment debtor against a corporation. The section does, however, provide in the second place that “it shall be the duty of any person or corporation to whom said execution shall be presented, and who shall at such time be indebted to the judgment debtor named in such execution, or who shall become indebted to such judgment debtor in the fu

In Wallace v. Lawyer, 54 Ind. 501 , 23 Am. Rep. 661 , the court was called upon to construe a provision of the practice act of the state of Indiana authorizing proceedings supplementary to execution against any “person” or “corporation,” under which proceedings were instituted to reach the salary of a judgment debtor who was a county auditor; and it was held that the provision did not refer to municipal corporations or bodies politic and corporate, but only to private or ordinary business corporations. The court, citing many cases in other jurisdictions which were similarly decided upon grounds of public policy, said (page 506, 54 Ind., 23 Am. Rep. 661):

“These authorities mainly refer to municipal corporations, but we think the same principle applicable to a body politic and corporate, as a county, and even for stronger reasons. And the decisions are generally made upon statutes authorizing corporations, in terms, to be garnished, yet the courts hold that the general word ‘corporation’ must be restricted to mean private or ordinary business corporations, and not extended to embrace municipal corporations or bodies politic and corporate. The words used in the statute of this state are, any ‘person’ or ‘corporation,’ in general terms.”

The precise question now under consideration was considered by Mr. Justice Seabury, at a Special Term of the City Court of New York, in Emes v. Fowler, 43 Misc. Rep. 603 , 89 N. Y. Supp. 685 ,

It follows that the judgment should be affirmed.

Judgment of the Municipal Court affirmed, with costa. All concur.