Brodie v. Hogan

New York Supreme Court

Brodie v. Hogan

138 N.Y.S. 871

DecidedJuly 18, 1912

StatusPublished

This text of 138 N.Y.S. 871 (Brodie v. Hogan) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Brodie v. Hogan, 138 N.Y.S. 871 (N.Y. Super. Ct. 1912).

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Opinion

BLACKMAR, J.

This is one of fourteen cases by the same plaintiff against different defendants. In each of them application is made for the issuance of an execution against wages pursuant to section 1391 of the Code of Civil Procedure. It appears that the defendant in each action resides in the city of New York; that judgments in all the actions were entered in the county of Onondaga upon confession; that they are all for small sums of money, most of them below $50 in amount; that transcripts of the judgments were filed and docketed in New York county; that executions were issued “out of” the Supreme Court of Onondaga county, which have been returned wholly unsatisfied. The affidavit then avers that a certain definite amount has been actually expended, or will necessarily be expended, upon this execution as sheriff’s fees and in obtaining certified copies of the order herein and the execution, and that the judgment debtor is employed by the city of New York. An order for the issuance of an execution is then prayed for to the justice sitting in Kings County.

[ 1 ] The proposed order in each case recites:

“That the said levy shall become a continuing levy until said execution and the expenses thereof, together with $2.85 actual disbursements incurred since obtaining said judgment, which are hereby allowed upon this proceeding, are fully satisfied and paid.”

Whatever may be said of the regularity of this proceeding, there is no warrant in law that I am aware of to authorize a judge to issue an order containing this last-quoted clause. The statute says that the [872]*872levy shall be a continuing levy until said execution and the expenses thereof are fully satisfied and paid. This proposed order contains the so-called allowance of an additional sum which is not authorized by the statute.

[2] It seems to me that orderly practice requires that this order should be applied for in the First district, where the judgment debtor lives.

Motion denied.

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BLACKMAR, J.

This is one of fourteen cases by the same plaintiff against different defendants. In each of them application is made for the issuance of an execution against wages pursuant to section 1391 of the Code of Civil Procedure. It appears that the defendant in each action resides in the city of New York; that judgments in all the actions were entered in the county of Onondaga upon confession; that they are all for small sums of money, most of them below $50 in amount; that transcripts of the judgments were filed and docketed in New York county; that executions were issued “out of” the Supreme Court of Onondaga county, which have been returned wholly unsatisfied. The affidavit then avers that a certain definite amount has been actually expended, or will necessarily be expended, upon this execution as sheriff’s fees and in obtaining certified copies of the order herein and the execution, and that the judgment debtor is employed by the city of New York. An order for the issuance of an execution is then prayed for to the justice sitting in Kings County.

[ 1 ] The proposed order in each case recites:

“That the said levy shall become a continuing levy until said execution and the expenses thereof, together with $2.85 actual disbursements incurred since obtaining said judgment, which are hereby allowed upon this proceeding, are fully satisfied and paid.”

Whatever may be said of the regularity of this proceeding, there is no warrant in law that I am aware of to authorize a judge to issue an order containing this last-quoted clause. The statute says that the [872]*872levy shall be a continuing levy until said execution and the expenses thereof are fully satisfied and paid. This proposed order contains the so-called allowance of an additional sum which is not authorized by the statute.

[2] It seems to me that orderly practice requires that this order should be applied for in the First district, where the judgment debtor lives.

Motion denied.

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Bluebook (online)

138 N.Y.S. 871, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brodie-v-hogan-nysupct-1912.