Maged v. City of New York

Appellate Terms of the Supreme Court of New York

Maged v. City of New York

75 Misc. 634, 133 N.Y.S. 969

CourtAppellate Terms of the Supreme Court of New York

DecidedMarch 15, 1912

StatusPublished

This text of 75 Misc. 634 (Maged v. City of New York) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Maged v. City of New York, 75 Misc. 634, 133 N.Y.S. 969 (N.Y. Ct. App. 1912).

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Opinion

Seabury, J.

One Ziperwi tz obtained a judgment against Mary E.1 Williams for forty-two dollars and fifteen cents. Plaintiff obtained a garnishee order on the ground that. Mary E: Williams, who was in the employ of the city of Hew York, was earning over twelve dollars per week. Under this order the city paymaster accumulated from the earnings of Williams forty-two dollars and fifteen cents. Upon the application of Williams the garnishee order was vacated on the ground that she was earning less than twelve dollars per [635]*635week. In proceedings supplementary to execution the city paymaster testified to having forty-two dollars and fifteen cents in his possession, and an order was made by the City Court permitting the paymaster to pay this sum to the plaintiff. He did not avail himself of this permission. Hpon motion the plaintiff was appointed receiver of the property of Williams and was authorized to sue. He sued the city of Hew York in this actión to recover forty-two dollars and fifteen cents. Williams is not a party to the action and no motion of "interpleader was made. The money in the hands of the defendant is salary of Mary E. Williams and is the accumulation deducted from a salary of less than twelve dollars per week. As such it was not subject to execution. Hot being subject to execution, no action could be properly brought for its recovery. It is true that the plaintiff as receiver of the property of Williams represents Williams, but I think he only represents her for the purpose of suing to recover property which if in Williams’ possession she could be compelled to apply on the judgment. If the money in the hands of the defendant was of this character, then no action was necessary because it could have been reached by a third party order. It is to be borne in mind that the defendant made no claim to the fund. The plaintiff, realizing that he could not require the money to be paid to the sheriff because it was exempt, now attempts by the indirect method of this action to do what he could not do directly.

° In my judgment the court below properly directed in favor of the defendant and the judgment should be affirmed, with costs.

Guy and Bijub, JJ., concur.

Judgment affirmed, with costs.

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Seabury, J.

One Ziperwi tz obtained a judgment against Mary E.1 Williams for forty-two dollars and fifteen cents. Plaintiff obtained a garnishee order on the ground that. Mary E: Williams, who was in the employ of the city of Hew York, was earning over twelve dollars per week. Under this order the city paymaster accumulated from the earnings of Williams forty-two dollars and fifteen cents. Upon the application of Williams the garnishee order was vacated on the ground that she was earning less than twelve dollars per [635]*635week. In proceedings supplementary to execution the city paymaster testified to having forty-two dollars and fifteen cents in his possession, and an order was made by the City Court permitting the paymaster to pay this sum to the plaintiff. He did not avail himself of this permission. Hpon motion the plaintiff was appointed receiver of the property of Williams and was authorized to sue. He sued the city of Hew York in this actión to recover forty-two dollars and fifteen cents. Williams is not a party to the action and no motion of "interpleader was made. The money in the hands of the defendant is salary of Mary E. Williams and is the accumulation deducted from a salary of less than twelve dollars per week. As such it was not subject to execution. Hot being subject to execution, no action could be properly brought for its recovery. It is true that the plaintiff as receiver of the property of Williams represents Williams, but I think he only represents her for the purpose of suing to recover property which if in Williams’ possession she could be compelled to apply on the judgment. If the money in the hands of the defendant was of this character, then no action was necessary because it could have been reached by a third party order. It is to be borne in mind that the defendant made no claim to the fund. The plaintiff, realizing that he could not require the money to be paid to the sheriff because it was exempt, now attempts by the indirect method of this action to do what he could not do directly.

° In my judgment the court below properly directed in favor of the defendant and the judgment should be affirmed, with costs.

Guy and Bijub, JJ., concur.

Judgment affirmed, with costs.

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Bluebook (online)

75 Misc. 634, 133 N.Y.S. 969, Counsel Stack Legal Research, https://law.counselstack.com/opinion/maged-v-city-of-new-york-nyappterm-1912.