DeLuca v. O'Kelly

New York Supreme Court

DeLuca v. O'Kelly

178 Misc. 718, 34 N.Y.S.2d 274, 1942 N.Y. Misc. LEXIS 1499

DecidedMarch 31, 1942

StatusPublished

This text of 178 Misc. 718 (DeLuca v. O'Kelly) 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

DeLuca v. O'Kelly, 178 Misc. 718, 34 N.Y.S.2d 274, 1942 N.Y. Misc. LEXIS 1499 (N.Y. Super. Ct. 1942).

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Opinion

Hooley, J.

Motion by receiver of judgment debtor for order determining that several garnishee executions against the judgment debtor’s salary have lapsed, pursuant to section 684 of the Civil Practice Act, and for other relief which would automatically follow such determination.

The judgment debtor, who was a city employee, was dismissed in 1938. In 1941 after lengthy litigation he was reinstated with full back salary. Prior to his dismissal there were several garnishee executions against his salary. Upon his reinstatement the city withheld an amount sufficient to cover the said executions from the time of his dismissal to the date of his reinstatement.

The sole issue on this motion is the effect of subdivision 6 of section 684 of the Civil Practice Act. That subdivision provides as follows: No execution under this section shall be issued hereafter upon a judgment against an officer or employee of any city or any county of the state or of the board of education of any such city, unless it shall contain the name of the judgment debtor, in full, his title or position, and the bureau, office, department or subdivision thereof in which he is employed; and if a person so employed shall resign or he dismissed while an execution issued pursuant to the provisions of this section is wholly or partly unsatisfied, and he he reinstated or reemployed, such execution shall lapse and no further deduction shall he made thereon unless such reinstatement or reemployment occur within ninety days after such resignation or dismissal * * (Italics supplied.)

The language employed is clear and unambiguous and clearly covers the situation involved herein. The judgment debtor was not reinstated within ninety days and in fact it was approximately •three years from the date of his discharge to the date of reinstatement.

Accordingly the motion must be granted and the executions must be deemed to have lapsed. The argument by one of the judgment creditors that the section was not intended to cover a case where the dismissal was wrongful and where there was no loss of salary on reinstatement is forceful and has the sympathy of the ' court. However, that is an argument more properly to be addressed to the Legislature which can amend said section so as to cover such situation. This court must take the section as it finds it.

The motion directing the city to pay over is also granted.

Settle order on notice.

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Hooley, J.

Motion by receiver of judgment debtor for order determining that several garnishee executions against the judgment debtor’s salary have lapsed, pursuant to section 684 of the Civil Practice Act, and for other relief which would automatically follow such determination.

The judgment debtor, who was a city employee, was dismissed in 1938. In 1941 after lengthy litigation he was reinstated with full back salary. Prior to his dismissal there were several garnishee executions against his salary. Upon his reinstatement the city withheld an amount sufficient to cover the said executions from the time of his dismissal to the date of his reinstatement.

The sole issue on this motion is the effect of subdivision 6 of section 684 of the Civil Practice Act. That subdivision provides as follows: No execution under this section shall be issued hereafter upon a judgment against an officer or employee of any city or any county of the state or of the board of education of any such city, unless it shall contain the name of the judgment debtor, in full, his title or position, and the bureau, office, department or subdivision thereof in which he is employed; and if a person so employed shall resign or he dismissed while an execution issued pursuant to the provisions of this section is wholly or partly unsatisfied, and he he reinstated or reemployed, such execution shall lapse and no further deduction shall he made thereon unless such reinstatement or reemployment occur within ninety days after such resignation or dismissal * * (Italics supplied.)

The language employed is clear and unambiguous and clearly covers the situation involved herein. The judgment debtor was not reinstated within ninety days and in fact it was approximately •three years from the date of his discharge to the date of reinstatement.

Accordingly the motion must be granted and the executions must be deemed to have lapsed. The argument by one of the judgment creditors that the section was not intended to cover a case where the dismissal was wrongful and where there was no loss of salary on reinstatement is forceful and has the sympathy of the ' court. However, that is an argument more properly to be addressed to the Legislature which can amend said section so as to cover such situation. This court must take the section as it finds it.

The motion directing the city to pay over is also granted.

Settle order on notice.

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Bluebook (online)

178 Misc. 718, 34 N.Y.S.2d 274, 1942 N.Y. Misc. LEXIS 1499, Counsel Stack Legal Research, https://law.counselstack.com/opinion/deluca-v-okelly-nysupct-1942.