Friedman v. McHugh

New York Supreme Court

Friedman v. McHugh

161 Misc. 856, 293 N.Y.S. 345, 1937 N.Y. Misc. LEXIS 1504

DecidedJanuary 25, 1937

StatusPublished

This text of 161 Misc. 856 (Friedman v. McHugh) 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

Friedman v. McHugh, 161 Misc. 856, 293 N.Y.S. 345, 1937 N.Y. Misc. LEXIS 1504 (N.Y. Super. Ct. 1937).

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Opinion

The return of the justice.

McLaughlin (Charles B.), J.

This is a motion to mandamus a justice of the Municipal Court who exercised his discretion under [857]*857section 684 of the Civil Practice Act, in denying an application for an order authorizing the issuance of a garnishee execution. This court has examined the paper submitted to the justice of the Municipal Court. The affidavit is insufficient as the basis of any ex parte order. An order based upon it could not have been sustained if attacked. It clearly appears that the Municipal Court justice acted within the powers granted to him, and it was in his discretion to say whether the affidavit was satisfactory. Section 684 provides that the order must be signed upon satisfactory proof of the facts. The mere statement that a telephone call was made is insufficient in law as there is no proof as to recognition of the voice. (Murphy v. Jack, 142 N. Y. 215; Richardson Evidence [5th ed.], § 524, subd. f.) In addition, the rule of procedure adopted by the justice was aimed to prevent a fraud upon the court and to avoid the abuses which would result, and which have occurred in the past, where a loose procedure was followed in the granting of orders for garnishee executions. The justice of the Municipal Court rightfully refused to sign the garnishee order. Moreover, the Municipal Court is a court of record and the action of the judge, even if this court did not approve the decision, would be subject to review only on appeal. Where there is a right to appeal, a mandamus order will not be granted (Matter of Runk, 200 N. Y. 447, 452); nor will it be issued to review any decision involving the exercise of discretion on the part of a judge. (People ex rel. Harris v. Commissioners, 149 N. Y. 26; People v. Baker, 35 Barb. 105; see, also, Fiero Particular Actions and Proceedings [4th ed.], vol. 2, p. 1918.) The motion is denied.

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The return of the justice.

McLaughlin (Charles B.), J.

This is a motion to mandamus a justice of the Municipal Court who exercised his discretion under [857]*857section 684 of the Civil Practice Act, in denying an application for an order authorizing the issuance of a garnishee execution. This court has examined the paper submitted to the justice of the Municipal Court. The affidavit is insufficient as the basis of any ex parte order. An order based upon it could not have been sustained if attacked. It clearly appears that the Municipal Court justice acted within the powers granted to him, and it was in his discretion to say whether the affidavit was satisfactory. Section 684 provides that the order must be signed upon satisfactory proof of the facts. The mere statement that a telephone call was made is insufficient in law as there is no proof as to recognition of the voice. (Murphy v. Jack, 142 N. Y. 215; Richardson Evidence [5th ed.], § 524, subd. f.) In addition, the rule of procedure adopted by the justice was aimed to prevent a fraud upon the court and to avoid the abuses which would result, and which have occurred in the past, where a loose procedure was followed in the granting of orders for garnishee executions. The justice of the Municipal Court rightfully refused to sign the garnishee order. Moreover, the Municipal Court is a court of record and the action of the judge, even if this court did not approve the decision, would be subject to review only on appeal. Where there is a right to appeal, a mandamus order will not be granted (Matter of Runk, 200 N. Y. 447, 452); nor will it be issued to review any decision involving the exercise of discretion on the part of a judge. (People ex rel. Harris v. Commissioners, 149 N. Y. 26; People v. Baker, 35 Barb. 105; see, also, Fiero Particular Actions and Proceedings [4th ed.], vol. 2, p. 1918.) The motion is denied.

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Bluebook (online)

161 Misc. 856, 293 N.Y.S. 345, 1937 N.Y. Misc. LEXIS 1504, Counsel Stack Legal Research, https://law.counselstack.com/opinion/friedman-v-mchugh-nysupct-1937.

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