In re Parkman

New York Supreme Court

In re Parkman

108 Misc. 316

DecidedJuly 15, 1919

StatusPublished

This text of 108 Misc. 316 (In re Parkman) 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

In re Parkman, 108 Misc. 316 (N.Y. Super. Ct. 1919).

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Opinion

Rodenbeck, J.

A garnishee execution was issued against the above-named judgment debtor and thereafter the judgment creditor above named secured [317]*317another garnishee execution against the same judgment debtor from a special county judge and then moved to vacate the prior execution on the ground of fraud and illegality. The execution of the applicant is attacked as having been illegally issued by the special county judge and as furnishing no basis for the application. This objection is well taken. The Code of Civil Procedure provides by whom the execution shall be issued. § 1391. That section provides that the application shall be made to the court and it may be issued in a court of record by a judge or justice thereof. This language has been construed to require the execution to be issued by the court in the case of a judgment in the Supreme Court (Neu v. Fox, 151 App. Div. 17), but even if it be construed to authorize a justice of the Supreme Court at chambers to issue the execution, the language would not confer power upon a county judge or a special county judge to do so. There is no provision of the Code of Civil Procedure which confers upon a county judge or special county judge the power exercised by a Supreme Court justice at chambers in all cases. §§ 241, 772. The special county judge had no power to issue the execution in this case since it is a power expressly conferred upon the Supreme Court or a justice thereof. The question is one of jurisdiction and power, and it is not a matter for construction but one for clear legislative expression. Gates v. Gates, 171 N. Y. Supp. 1036.

Motion denied, with ten dollars costs.

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Rodenbeck, J.

A garnishee execution was issued against the above-named judgment debtor and thereafter the judgment creditor above named secured [317]*317another garnishee execution against the same judgment debtor from a special county judge and then moved to vacate the prior execution on the ground of fraud and illegality. The execution of the applicant is attacked as having been illegally issued by the special county judge and as furnishing no basis for the application. This objection is well taken. The Code of Civil Procedure provides by whom the execution shall be issued. § 1391. That section provides that the application shall be made to the court and it may be issued in a court of record by a judge or justice thereof. This language has been construed to require the execution to be issued by the court in the case of a judgment in the Supreme Court (Neu v. Fox, 151 App. Div. 17), but even if it be construed to authorize a justice of the Supreme Court at chambers to issue the execution, the language would not confer power upon a county judge or a special county judge to do so. There is no provision of the Code of Civil Procedure which confers upon a county judge or special county judge the power exercised by a Supreme Court justice at chambers in all cases. §§ 241, 772. The special county judge had no power to issue the execution in this case since it is a power expressly conferred upon the Supreme Court or a justice thereof. The question is one of jurisdiction and power, and it is not a matter for construction but one for clear legislative expression. Gates v. Gates, 171 N. Y. Supp. 1036.

Motion denied, with ten dollars costs.

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Bluebook (online)

108 Misc. 316, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-parkman-nysupct-1919.

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